Supreme Court Says Virginia Redistricting Must Be Reexamined for Racial Bias

By Robert Barnes, The Washington Post

01 March 17

 

he Supreme Court on Wednesday told a lower court that it must reconsider whether Virginia’s Republican-led legislature unconstitutionally gerrymandered about a dozen legislative districts in an effort to dilute the impact of African American voters.

The justices declined to take a position on the issue. But they said a lower court had not applied the right standards when it concluded that the legislature’s efforts were constitutional.

The decision was at least a temporary win for black voters and Democrats who have challenged the General Assembly’s actions in drawing both legislative and congressional lines.

A win at the Supreme Court last term resulted in redrawing the congressional map in a way that favored the election of a second African American congressman last fall. It is unclear if Wednesday’s technical and splintered decision would have such an impact.

Justice Anthony M. Kennedy, writing for five other justices, said the three-judge panel that had initially considered the challenge made a mistake at the beginning of its examination of whether the use of race predominated in drawing some districts.

It required challengers to show at the outset that the predominate use of race created a conflict with traditional redistricting criteria. But Kennedy said that was not the right approach.

“A conflict or inconsistency may be persuasive circumstantial evidence tending to show racial predomination, but there is no rule requiring challengers to present this kind of evidence in every case,” Kennedy wrote.

Chief Justice John G. Roberts Jr. and Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan joined Kennedy’s opinion. Justice Samuel A. Alito mostly agreed, and Justice Clarence Thomas repeated his disagreement with using race to fashioning legislative districts, whether it predominates or not.

Virginia House of Delegates Speaker William Howell (R-Stafford), said in response, “We are disappointed by the Supreme Court’s ruling today, but the Plaintiffs in this case did not prevail. . . . the Supreme Court overruled the way in which the District court analyzed the case. We have read the court’s opinion and are quite confident that we will win when we go back to the district court.”

Democrats proclaimed victory. “The governor has long thought that Virginia’s legislative maps are unconstitutional gerrymanders, and now we’ve got two consecutive rulings by the Supreme Court that uphold that viewpoint,” said Brian Coy, a spokesman for Gov. Terry McAuliffe (D). “We’re analyzing the opinion now, and we’ll have further reaction as soon as the review is complete.”

Voting law experts, however, said the decision was very limited. The court specifically said it was not endorsing the challengers’ assertion that the districts were unconstitutionally gerrymandered but rather sending the case back to the lower court for such a review.

And it upheld one district, saying that while race was the predominate factor, the state had good reason in drawing it to comply with the Voting Rights Act.

At issue were 12 House districts in Richmond, the Hampton Roads area and along the state’s southern border. All have African American voter majorities.

Republicans who drew the new map after the 2010 Census said their goal was to preserve those incumbents. To do that, Republicans said each of the districts would have a black voting age population of 55 percent.

But African Americans and Democrats complained that the real intent was to pack black voters into those districts so the surrounding districts would be more winnable for Republicans.

Marc E. Elias, the lawyer representing the challengers, told the Supreme Court during oral arguments in the case that race did play the predominant role in drawing lines.

“Virginia applied this 55 percent rule to move voters in and move voters out of districts on the basis of race, regardless of the differences in voting patterns, geography, demographics or the actual interests of black voters in each of those districts,” he said.