Bethune-Hill v. Virginia State Board of Elections By Leland Ware
On March 1, 2017, the United States Supreme Court ruled
that a conflict between a state’s redistricting plan and traditional
redistricting criteria is not a mandatory precondition to establish a claim of unconstitutional
racial gerrymandering.
After the 2010
census, Virginia’s General Assembly decided to redraw the legislative districts
for the State Senate and House of Delegates. In 2011, a Virginia legislative committee
established criteria for the redistricting process. These included traditional considerations
such as compactness, contiguity of territory, respect for neighborhoods, and communities
of interest.
The Committee
included to two additional goals: the population of every district should be as
equal as practicable; and the new map must protections against “retrogression” as
required by contained in §5 of the Voting Rights Act. Retrogression is any
change to a voting standard, practice, or procedure that has the purpose or
effect of diminishing the ability of members of a minority group to elect their
preferred candidates.[1]
Voters registered in 12 of the redrawn districts filed a
civil action challenging the redistricting under the Equal Protection Clause of
the Fourteenth Amendment. They argued that the 12 districts were illegally packed with
African-Americans, which diluted their voting strength in other nearby
districts, making those districts friendlier to Republicans. After a trial, a 3-judge District Court
panel concluded that for 11 of the 12 districts challenged the plaintiffs did
not prove that race was the predominant factor motivating the legislature’s
decision to place significant numbers of voters inside or outside of a particular
district. The District Court held that race predominates only when there is an
actual conflict between traditional redistricting criteria and racial
considerations.
As to the district 75, the other legislative district that
was challenged, the trial Court found that race was the predominate
consideration when the boundaries were drawn. However, when a challenger
succeeds in establishing racial predominance, the burden shifts to the State to
demonstrate that its districting legislation is narrowly tailored to achieve a
compelling interest. The trial Court held that district 75 was constitutional
because the legislature’s use of race was narrowly tailored. Race was used to
avoid retrogression, which is a compelling state interest.
When the case reached the Supreme Court it reversed the
trial Court’s decision. The high court ruled that a conflict or inconsistency
between a plan and traditional redistricting criteria is not a mandatory
precondition for a challenger to establish a claim of racial gerrymandering. Conflicts
or inconsistencies may be circumstantial evidence of racial predomination, but
there is no rule requiring challengers to present this kind of evidence in every
case.
The challengers also contended that the District Court
committed error when it considered the legislature’s racial motive only to the
extent the challengers identified deviations from traditional redistricting
criteria that were attributable to race and not to some other factor. As with
the other aspect of the plaintiffs’ claim, the Supreme Court held that showing
a deviation from, or conflict with, traditional redistricting principles is not
a necessary prerequisite to establishing racial predominance.
The Court affirmed the trial court’s ruling that district 75
was constitutional because the legislature’s use of race had a compelling
justification and was narrowly tailored. The case was remanded to the District
Court to determine the extent to which race influenced the shape of the 11 other
districts that were challenged using the correct legal standard. The case is a
victory for voting rights advocates because it relaxed what would have been a
more stringent and difficult to meet burden of proof in gerrymandering cases.
[1]
In Shelby County v. Holder,
the Supreme Court in 2013 ruled that Section 4(b) is unconstitutional because
the coverage formula was based on outdated data more which did not reflect current
conditions in covered jurisdictions. This made Section 4(b) an impermissible
burden on the constitutional principles of federalism and equal sovereignty of
the states. The Court did not strike down Section 5, but without Section 4(b),
no jurisdiction will be subject to Section 5 preclearance unless Congress
enacts a new coverage formula.
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