Issues
Does a state board of elections violate the Equal Protection Clause if it uses a one-size-fits-all black voting age population floor as part of its redistricting process in an effort to comply with the Voting Rights Act?
This case gives the Supreme Court the opportunity to determine whether a state’s use of a black voting age population (“BVAP”) floor in crafting new legislative districts is permissible if the state also considers other race-neutral criteria. Appellants, Bethune-Hill et al. (“Bethune-Hill”), argue that the Virginia State Board of Elections’ (“BOE”) use of a 55% BVAP floor violated the Equal Protection Clause because the BOE acknowledged that complying with the racial target was the most important factor in the redistricting process. Bethune-Hill argues that racial targets demean minorities, regardless of whether the state also considers race-neutral factors. Appellees, the BOE, contend that their use of the BVAP floor was a lawful way of complying with the demands of the Voting Rights Act. The BOE claims that the fact that the challenged districts conform to traditional race-neutral redistricting standards illustrates that minority voters were not harmed in the way the Equal Protection Clause contemplates because the state grouped them according to communities of interest, not solely according to their skin color. This case will impact what measures states can take in order to comply with the Voting Rights Act.
Questions as Framed for the Court by the Parties
- Did the court below err in holding that race cannot predominate even where it is the most important consideration in drawing a given district unless the use of race results in “actual conflict” with traditional redistricting criteria?
- Did the court below err by concluding that the admitted use of a one-size-fits-all 55% black voting age population floor to draw twelve separate House of Delegates districts does not amount to racial predominance and trigger strict scrutiny?
- Did the court below err in disregarding the admitted use of race in drawing district lines in favor of examining circumstantial evidence regarding the contours of the districts?
- Did the court below err in holding that racial goals must negate all other districting criteria in order for race to predominate?
- Did the court below err in concluding that the General Assembly’s predominant use of race in drawing House District 75 was narrowly tailored to serve a compelling government interest?
Facts
In anticipation of the 2010 census results, the Virginia General Assembly began preparing to redraw the legislative districts for the Virginia House of Delegates and the Virginia Senate. Delegate Chris Jones, who had been substantially involved in the 2001 redistricting process, led the effort. During the summer of 2010, the redistricting subcommittee of the House Committee on Privileges and Elections held six public hearings to gather input from Virginians concerning the impending redistricting process. The governor then created the “Independent Bipartisan Advisory Redistricting Commission” to oversee the redistricting process.
Virginia was marked as a covered jurisdiction under Section 4 of the Voting Rights Act (“VRA”), which requires the state to comply with Section 5 of the VRA when redistricting. Section 5 requires legislators to ensure that the new district lines they draw do not lead to an unwarranted “retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise.” In order to comply with Section 5 of the VRA, the Assembly adopted a plan with twelve majority-minority House districts. These twelve districts are the districts challenged in this case. The Black Voting Age Population (“BVAP”) in the twelve challenged districts ranged from 46.3% to 62.7% before the redistricting, and several of the legislators involved in the redistricting process believed that the BVAP needed to be at least 55% in order to avoid the “unwarranted retrogression” forbidden by the VRA.
After the census results were released in early 2011, the House Committee officially announced that it would consider six factors while engaging in the redistricting process. The Committee agreed to (1) draw districts with roughly equal populations, (2) follow the guidelines of the VRA as outlined above, (3) draw contiguous and compact districts, (4) create single-member districts, (5) group voters together in “communities of interest” based on economic factors, social factors, geographic factors, cultural factors, religious beliefs, and voting trends, and (6) hold population equality and compliance with the VRA as the most important factors in redistricting. After considering these factors, the Virginia House and Senate submitted redistricting plan HB 5001 to then-Virginia Governor Robert McDonnell. After McDonnell vetoed the plan and the legislature made minor alterations, the governor signed plan HB 5005 into law on April 29, 2011. Residents of the twelve challenged districts filed suit on December 22, 2014 alleging that the districts had been racially gerrymandered in violation of the Equal Protection Clause.
The case was heard before a three-judge district court in compliance with 28 U.S.C. § 2284 because the residents challenged “the constitutionality of the apportionment of . . . [a] statewide legislative body.” The district court found for the Virginia Board of Elections. The court held that the appellants, Bethune-Hill et al., had failed to prove that race predominated in the drawing of eleven of the districts, and that even though race did predominate in the drawing of District 75, the General Assembly had a compelling interest for using race as its predominant factor and used race in a way narrowly tailored towards carrying out that interest. Bethune Hill appealed the district court’s decision directly to the Supreme Court of the United States under 28 U.S.C. § 1253, which allows for direct appeals to the Supreme Court in certain situations. The Supreme Court acknowledged probable jurisdiction over this case on June 6, 2016.
Analysis
THE RACIAL PREDOMINANCE STANDARD AND THE BVAP FLOOR
Bethune-Hill contends that the Court should apply strict scrutiny to the challenged districts because, under Alabama Legislative Black Caucus v. Alabama, 135 S. Ct. 1257 (2015), the use of a racial floor in drawing districts strongly implies that race did predominate. Consequently, Bethune-Hill argues that the district court should have given more weight to the black voting age population floor (“BVAP”) floor and that the court erred in rendering the floor immaterial. According to Bethune-Hill, the challenged districts cannot evade strict scrutiny just because there is another factor besides race that explains the location or shape of the districts.
The Virginia State Board of Elections (“BOE”), however, contends that the fact that the legislature used a BVAP floor in redistricting does not, by itself, mean that strict scrutiny should apply, arguing that the predominance standard is “demanding.” The BOE contends that the Court has not applied strict scrutiny in redistricting cases unless the BVAP floor resulted in district lines departing significantly from traditional redistricting principles. Further, the BOE claims that the Court has never adopted the view that the use of a BVAP floor is strong evidence that race predominated. Lastly, the BOE claims that subjecting all racial targets to strict scrutiny would undercut the purposes of the Voting Rights Act (“VRA”) and would create a statutory “rock and a hard place” that would render legislatures vulnerable to suit under either the VRA or the Equal Protection Clause.
EVIDENCE OF RACE AS A PREDOMINANT FACTOR
Bethune-Hill claims that the evidence presented to the district court further demonstrates that race clearly predominated in drawing the challenged districts, thus requiring the Court to apply strict scrutiny. Bethune-Hill focuses, first, on statewide evidence to prove its claim of racial predominance. Bethune-Hill argues that, in addition to the fact that the 55% BVAP floor applied across each challenged district, statements from Delegate Chris Jones, the leader of the redistricting effort, demonstrate that race predominated. Bethune-Hill notes that Delegate Jones stated that compliance with the VRA was “the most important thing” to him in creating the redistricting plan, aside from population equality. In addition, Bethune-Hill argues that criteria adopted by the Virginia House Committee on Privileges and Elections that governed the redistricting analysis demonstrates that race predominated in redistricting, as the House criteria stated that avoiding the dilution of racial minority voting power must be “given priority” over other factors. As further statewide evidence of racial predominance, Bethune-Hill cites Virginia’s preclearance submission. Bethune-Hill argues that courts have found race to predominate when a preclearance submission shows that a legislature intended to draw a specific number of districts based on race. Bethune-Hill claims that these statewide factors were not given adequate consideration by the district court.
On the other hand, the BOE contends that the majority of Bethune-Hill’s “statewide evidence” of racial predominance merely demonstrates a fact that neither party disputes—that the Virginia legislature sought a 55% BVAP in each of the challenged districts to maintain VRA compliance. In addition, the BOE argues that prioritizing VRA compliance over other criteria is sensible, as failing to comply with the VRA could result in the invalidation of the redistricting legislation. The BOE also argues that Delegate Jones’s statements only demonstrate that Delegate Jones might have allowed race to predominate over traditional redistricting principles if it was absolutely necessary to comply with the VRA, and that his statements do not prove that the legislature actually subordinated traditional redistricting principles. Further, the BOE argues that other statements by Delegate Jones illustrate that complying with the VRA did not cause him to violate any traditional redistricting principles. Moreover, the BOE contests the importance of the preclearance submission which Bethune Hill cites as further evidence of racial predominance. The BOE claims that the preclearance submission merely stated in the required minority impact portion that the legislature would use a 55% BVAP floor. Because the BOE claims that this evidence shows that race did not predominate in the drawing of the challenged districts, they contend that strict scrutiny should not apply.
In addition to “statewide evidence” of racial predominance, Bethune-Hill asserts that district-specific evidence demonstrates that race predominated in the drawing of each of the twelve challenged districts, therefore triggering strict scrutiny. For instance, in District 74, Bethune-Hill notes that the district underwent a huge population shift with much of its black population going to other challenged districts, although District 74, itself, was not underpopulated. Additionally, Bethune-Hill argues that the “ax-shaped” appearance of District 74 is suspicious and evidence of racial predominance. Bethune-Hill also notes, as further evidence of racial predominance, the fact that Delegate Jones told Delegate McClellan that in drawing District 74, any drawing must result in four Richmond-area districts each having a BVAP of at least 55%. Moreover, as evidence of racial predominance in District 89, Bethune-Hill notes that the black voters in District 89 have had no problem electing their preferred candidate, yet District 89’s BVAP increased from 52.5% to 55.5% under the redistricting plan. They also note the district’s decrease in compactness, which they claim was caused by picking up a lone population of primarily African-American voters. Bethune-Hill argues that similar patterns demonstrating racial predominance exist in District 92, where they maintain that surrounding districts were “drained” to keep the BVAP of District 92 above the 55% floor. Bethune-Hill provides evidence in each of the twelve challenged districts that they claim demonstrates racial predominance in each of those districts.
The BOE, however, provides alternative explanations for the changes in compactness, shape, and composition in each of the twelve challenged districts, arguing that the evidence upon which Bethune-Hill relies does not demonstrate that race caused the legislature to disregard traditional redistricting principles in its plan. Thus, the BOE contends that strict scrutiny should not apply. For instance, they argue that District 74 has retained its “axe-like shape” since 1991, and that any changes in its shape result from traditional redistricting principles, such as removing a water crossing from the district. In response to Bethune-Hill’s claim that race predominated in District 89, the BOE contends that the district was underpopulated and that the district changed to include a funeral home owned by a delegate in the district. In response to claims of racial predominance in District 92, the BOE claims that the redistricting plan eliminated precinct splits and made the district more compact, noting that the district’s BVAP would have remained above 55% even if every person added to the district were white. The BOE also notes that the twelve challenged districts, as a whole, retained over “72% of their cores” in the redistricting plan, which is a higher percentage than the average statewide. In short, the BOE contends that in each of the twelve challenged districts, race did not subordinate traditional redistricting principles, so strict scrutiny should not apply. Lastly, the BOE refers to the appropriate standard of review and argues that the Supreme Court can only reverse the district court’s finding that race did not predominate if the Supreme Court determines that the finding was a clear error.
NARROW TAILORING
Bethune-Hill contends that none of the twelve challenged districts would survive strict scrutiny, as Virginia’s use of race in redistricting is not narrowly tailored. Bethune-Hill argues that the standard for narrow tailoring turns on whether or not the legislature had a “strong basis in evidence” that explains the “race-based” decision it made in redistricting. Bethune-Hill notes that the 55% BVAP threshold was not based on evidence, pointing to testimony that the figure was “pulled out of thin air.” Bethune-Hill also argues that Delegate Jones failed to provide evidence of how his analysis led him to decide upon a 55% BVAP floor.
The BOE counters that all twelve districts would satisfy strict scrutiny if strict scrutiny were applied. The BOE, noting that determining the necessary BVAP level to maintain VRA compliance is difficult, claims that Delegate Jones looked to evidence to determine the 55% floor, including census data, voting patterns, election history, voter registration, and turnout rates. The BOE further notes that Delegate Jones also met with other delegates to determine the 55% threshold. The BOE contends that the best way to determine if minority voters will be able to elect their preferred candidates is primary election data, which is difficult to obtain due to the scarcity of contested primaries. The BOE argues that states do not have to determine exactly what BVAP percentage would best result in compliance with the VRA. According to the BOE, the Virginia legislature created the best redistricting plan it could with the resources it had, rendering the plan narrowly tailored.
Discussion
SEPARATION OF POWERS
In support of Bethune-Hill, the Constitutional Accountability Center argues that requiring “predominance” under the Equal Protection Clause to necessitate an actual conflict between race and race-neutral criteria would sanction racial sorting and permit the exact sort of harm that the Equal Protection Clause seeks to protect against. The Campaign Legal Center, et al., agree and contend that whether or not a redistricting plan complies with other neutral criteria, the utilization of racial targets is impermissible because it furthers the perception that individual members of minority racial groups think alike and have the same values. They claim that this sort of thinking harms minority voters, not only by defining their identities entirely by their race, but also by sending the message to elected officials in these districts that their duty is to represent only the interests of this group, rather than their constituency as a whole.
The Virginia Board of Elections, et al. (“BOE”) argue that the Court should rule in their favor and uphold their redistricting plan in the interest of separation of powers in our federal system. The BOE contends that if courts were to apply strict scrutiny every time a state used a minority population floor in order to comply with Section 5 of the Voting Rights Act (“VRA”), very few redistricting plans would escape judicial review. According to the BOE, since drawing congressional districts is a “quintessential” state function, this much judicial oversight would be an impermissible infringement on state power. In support of this position, the National Black Chamber of Commerce and the Hispanic Leadership Fund argue that the US Constitution grants discretion to state legislatures in crafting legislative districts, and that a decision in favor of Bethune Hill would divest state legislatures of this constitutionally-granted discretion. Furthermore, the BOE claims that treating minority population targets as presumptively unconstitutional would make it almost impossible to address the retrogression concerns of the VRA, and would trap redistricting committees between the demands of the VRA and the Equal Protection Clause. According to the BOE, under such a regime, states that attempt to avoid unwarranted retrogression under the VRA would always be subject to strict scrutiny, and states that chose to ignore retrogression concerns would be subject to claims under the VRA.
RACIALLY MOTIVATED POPULATION TARGETS
The NAACP also contends in support of Bethune-Hill that using a BVAP target interferes with the ability of black voters to elect candidates of their choosing because it needlessly breaks up existing successful cross-racial coalitions. The Campaign Legal Center, et al., also claim that requiring racial considerations to override all other neutral redistricting criteria would have the result of shielding almost all instances of racial gerrymandering, since it is unlikely states will draw districts that could not be explained by at least one race-neutral factor.
Non-profit OneVirginia2021: Virginians for Fair Redistricting additionally argues in support of Bethune-Hill that even if the court examines the other criteria that the state used during the redistricting process, it should not give any credence to political motivations. First of all, the group claims that the state of Virginia cannot be said to have a compelling interest in advantaging one set of political views over another. The group also argues that politically motivated redistricting leads to polarization and extremism in general elections, since the dominant party has no motivation to nominate candidates that will appeal to independents or members of the other party during the primaries.
The BOE counters that when a state utilizes a racial target in order to comply with the VRA and otherwise uses race-neutral criteria, voters are not injured because they are placed in districts with individuals with whom they share many characteristics. According to the BOE, when voters are sorted based on normal redistricting standards such as geography, they are grouped with people in their communities who live near them and are not harmfully stereotyped. The BOE argues that the only time the harm prohibited by the Equal Protection Clause arises is when voters are sorted solely according to their race and without regard to the commonalities they share with the other voters in their district. Furthermore, the Southeastern Legal Foundation and the Center for Equal Opportunity, in support of the BOE, argue that a decision in favor of Bethune Hill would establish a precedent that would require legislatures and courts to engage in unconstitutional and incoherent racial micro-balancing in the future.
The BOE also argues that requiring plaintiffs to prove that racial considerations had an actual impact on the redistricting process and overrode all other neutral factors helps overcome the inherent problem of discerning the intent of a multi-body legislature. According to the BOE, when districts are drawn in ways that can only explained by racial considerations, courts can assume that all members of the legislative body shared the same racial motives, but it becomes difficult to judge whether the legislators had pernicious motives if the district shapes could be explained by a multitude of reasons. In addition, political scientists Thomas L. Brunell, Charles S. Bullock III, and Ronald Keith Gaddie argue that courts should only require states’ racial floor targets to have a “strong basis in evidence.” The political scientists contend that requiring states to precisely determine the percentage they will utilize for the BVAP floor would be impracticable due to constantly shifting voting age populations and errors in census date and would therefore make it impossible for states to address the concerns of the VRA.
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Additional Resources
- Robert Barnes and Laura Vozzella, Supreme Court will weigh in on whether Va. districts are racially gerrymandered, The Washington Post (June 6, 2016).
- Josh Gerstein, Supreme Court takes case claiming racial gerrymandering in Virginia, Politico (June 6, 2016).