Supreme Court Weighs Alleged Racial Gerrymandering In Virginia Case

March 19, 2019 by Dan McCue
The Supreme Court of the United States in Washington, D.C., on September 25, 2018. (Olivier Douliery/Abaca Press/TNS)

As oral arguments got underway in the first of two high-profile gerrymandering cases the U.S. Supreme Court will hear this month, the justices appeared to be treading carefully despite their familiarity with claims they’ve heard once before.

The case, Va. House of Delegates v. Bethune-Hill, not only will resolve the question of whether the Republican-led Virginia House of Delegates violated the equal protection rights of black voters by confining them to a handful of oddly-shaped election districts, it could conceivably flip control of the state legislature to the Democrats.

Republicans currently hold control of the House of Delegates by a margin of just 51-49.

At issue is a legislative district map drawn after the last census that black voters claim packed them into a handful of election districts to make others whiter and more prone to vote Republican.

The Republican-controlled House, meanwhile, is defending the map it drew in 2011, after the last census, which has been used in the four elections since.

Democratic voters sued in 2014, accusing Republicans of packing black voters into certain districts to make surrounding districts whiter and more Republican.  The case made it all the way up to the Supreme Court, but in 2017, the justices sent it back to the lower court, saying the map had to be considered under a different legal standard than had originally been applied.

In June 2018, the lower court ruled that the House of Delegates had indeed improperly considered race as it drew 11 of the 100 House districts and ordered the legislature to draw a new map.

When the House of Delegates and Democratic Gov. Ralph Northam failed to reach an agreement on a new redistricting plan, the lower court chose a new map from a series of proposals submitted by a special master.

State elections officials are preparing to use that map for primary contests scheduled to take place on June 11, 2018. Candidates have until March 28 to sign up for primary contests.

The timing of the primary is problematic for the justices, who are not expected to hand down their ruling on the case until June, potentially throwing a last-minute wrench into the contests.

On Monday, Justice Brett Kavanaugh, who was appointed last year and has never before dealt with the gerrymandering issue, expressed sympathy for the Republican mapmakers, “I’m wondering how a state can comply with the Voting Rights Act on the one hand and Equal Protection on the other in this narrow band.”

He also noted that a number of their black colleagues had supported the districting plan they came up with and that it also received the blessing of the U.S. Justice Department.

If the Delegates placed fewer black voters in each district, Kavanaugh said, “they would get hammered from the other side, saying you are discriminating against African American voters because you’re not giving the voters a sufficient opportunity to elect the candidate of their choice.”

Paul Clement, arguing on behalf of the state House Republicans, argued that the justices shouldn’t micromanage the process or impose a “court-ordered plan on the people of Virginia.”

But attorney Marc Elias, arguing for the voters who challenged the map, said the Republican mapmakers went too far by adhering to a rule-of-thumb that the 11 challenged districts all have populations that were 55 percent black.

“If the state creates a blanket rule,” Elias said, “then it has engaged in racial stereotyping.”

Justice Sonia Sotomayor appeared to agree, noting the mapmakers had actually split streets down the middle in some districts to reach their 55 percent target.

“It’s hard for me to imagine how race isn’t predominant when they’re getting down to the nitty-gritty of what side of a street you live on,” Sotomayor said. “I don’t know how you can look at that and not think that race predominated.”

Justice Elena Kagan seemed to suggest lawmakers should have done a more thorough, district by district analysis when drawing boundaries.

A ruling in the case is due by the end of June. Because the Republicans currently hold just a 2-seat majority both in the House of Delegates and the state Senate, many observers have said redrawing the contested districts could give an advantage to Democrats headed into the fall campaign.

Every seat in the Virginia legislature is on the ballot in November. The outcome of the election  will determine party control of the state chambers headed into the 2020 census and next redistricting, possibly reshaping state and congressional district maps for the next decade.

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