Racial Gerrymandering: Past Cases and the Supreme Court’s Upcoming Decision in Bethune-Hill II

Racial Gerrymandering: Past Cases and the Supreme Court’s Upcoming Decision in Bethune-Hill II

Legal Sidebar

Racial Gerrymandering: Past Cases and the
Supreme Court’s Upcoming Decision in
Bethune-Hill II
March 14, 2019
On March 18, 2019, the Supreme Court is set to hear argument in Virginia House of Delegates v. Bethune-
Hill (Bethune-Hill II), a case raising the question of whether the Commonwealth of Virginia violated the
Fourteenth Amendment’s Equal Protection Clause by using race as the determinative factor in drawing its
state legislative map. This case is not the Court’s first encounter with Virginia’s legislative map. Barely
two years ago, the Court issued its decision in Bethune-Hill v. Virginia State Board of Elections (Bethune-
Hill I), where it reviewed a district court’s determination that all of the challenged districts passed
constitutional muster. Holding that the lower court had applied an incorrect legal standard for all but one
of the challenged districts, the Court remanded the case for reconsideration. During the March 18
argument, the Court will review the district court’s second decision, which concluded that all of the
challenged districts are unconstitutional racial gerrymanders. While Bethune-Hill II only concerns
Virginia’s legislative map, it illustrates the challenges governments often face in determining the manner
in which race may (or must) be taken into account in drawing district maps.
This Sidebar begins by providing an overview of the Supreme Court’s racial gerrymandering
jurisprudence, before discussing the Court’s decision in Bethune-Hill I and the issues currently before the
Court in Bethune-Hill II. The Sidebar concludes by exploring possible implications of the Court’s
upcoming decision on racial gerrymandering.
The Supreme Court’s Racial Gerrymandering Jurisprudence
Racial gerrymandering claims are primarily based on the Fourteenth Amendment’s Equal Protection
Clause. That provision prohibits governments from passing laws that differentiate between persons on the
basis of race without a compelling justification. The Supreme Court first recognized a claim of racial
gerrymandering under the Equal Protection Clause in its 1993 decision of Shaw v. Reno. That case
involved North Carolina’s efforts to redraw its congressional map after the 1990 census, which entitled it
to an additional seat in the U.S. House of Representatives. North Carolina’s revised congressional map
included two districts composed of a majority of black voters. These districts, however, were “unusually
shaped,” winding in “snakelike fashion” across vast swaths of the state and branching off with “finger-
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like extensions.” Residents of these districts sued, claiming that North Carolina violated the Equal
Protection Clause by drawing district boundaries with the goal of separating voters on the basis of race.
The Supreme Court agreed. Noting that the Equal Protection Clause’s “central purpose” is to “prevent the
States from purposefully discriminating between individuals on the basis of race,” the Court concluded
that this provision prohibits government entities from drawing district lines with the goal of segregating
voters based on race. The Court acknowledged that it may often be difficult to prove that district lines
have been drawn for this purpose, particularly as non-racial districting principles—such as compactness,
contiguity, and respect for political subdivisions—may often explain the district’s boundaries. At the same
time, a government’s failure to abide by traditional districting principles may be persuasive evidence that
race was the government’s primary motivator in drawing a district’s lines as it did. And, at some point,
district boundaries may be “so highly irregular” that they “rationally cannot be understood as anything
other than an effort to separate voters into different districts on the basis of race.” In other words, the
Court stated, “reapportionment is one area in which appearances do matter.”
Over the years, the Court has expounded on the parameters of a racial gerrymandering claim. In 1995 in
Miller v. Johnson and again a year later in Shaw v. Hunt, the Court clarified the relevance of a district’s
shape to a racial gerrymandering claim. While the irregularity—“bizarreness,” to use the Court’s word—
of a district’s shape may be circumstantial evidence of racial gerrymandering, the Court explained that
irregularity of shape is not necessary to make out a racial gerrymandering claim. Instead, whether proven
by direct evidence of legislative purpose or by circumstantial evidence—such as a bizarrely shaped
district or an alternative map demonstrating that the government’s non-racial goals could have been
achieved with less consideration of race—the ultimate constitutional question is whether “race for its own
sake” was “the legislature’s dominant and controlling rationale in drawing its district lines.”
Proving that racial concerns predominate is no mean feat. Redistricting, the Court has explained, is a
“most difficult subject for legislatures” in light of the various “competing interests”—including racial
considerations—that must be balanced in drawing legislative maps. As a result, the Court has directed that
governments be accorded “discretion to exercise the political judgment” needed to accomplish this task
and that courts show “extraordinary caution” before concluding that race was a government’s primary
motivator in drawing district boundaries. That task is made all the more difficult where there is a
significant correlation between race and political affiliation—i.e., where a large portion of a racial group
aligns with the same political party. Where that is so, proving that race was the government’s dominant
motivator will be an uphill battle because the government can always identify legitimate political reasons
for drawing the district’s boundaries as it did. Addressing this conundrum, the Court has explained that
when there exists a significant correlation between race and political affiliation in a given district, a
plaintiff must prove “that the legislature could have achieved its legitimate political objectives in
alternative ways” that are “comparably consistent with traditional districting principles,” and would “have
brought about significantly greater racial balance.”
If considerations of race did predominate in drawing a district’s boundaries, then the state acted
unconstitutionally unless the government can identify a compelling interest justifying its use of race and
show that its use of race was narrowly tailored to serve that interest. In most cases, states have relied on
the need to comply with § 2 or § 5 of the Voting Rights Act (VRA) in order to justify their use of race. In
the redistricting context, § 2 of the VRA prohibits changes to district boundaries that weaken minority
voters’ ability to elect the candidate of their choice (i.e., vote dilution). VRA § 5 separately prohibits
redistricting plans that reduce the “number of districts in which minority groups can elect their preferred
candidates” relative to the existing map (i.e., retrogression), though § 5 was rendered inoperative by the
Supreme Court’s 2013 decision in Shelby County v. Holder. However, despite governments’ repeated
reliance on these provisions in the redistricting context, the Court has consistently assumed, but declined
to squarely decide whether compliance with the VRA is a compelling interest.

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The Bethune-Hill Cases: Challenges to Virginia’s Legislative Map
Bethune-Hill I
This legal framework was in place when Virginia set out to redraw its state legislative districts following
the 2010 census. Because Virginia was at the time subject to § 5 of the VRA, it was required to maintain
the preexisting number of state legislative districts in which minorities were able to elect their preferred
candidates. To satisfy this requirement, Virginia adopted a legislative map with twelve districts containing
a black-voting-age population (BVAP) of at least fifty-five percent.
These districts were challenged as racial gerrymanders. A three-judge district court held a 4-day trial and
concluded that race was not the primary motivator behind eleven of the twelve districts. Underlying that
decision was the court’s determination that considerations of race should only be found to predominate
when there is an “actual conflict” between a district’s boundaries and traditional districting principles and
that a court’s inquiry into whether racial considerations predominated should focus only on those portions
of the district’s boundaries that conflict with traditional districting principles. As to the remaining district
(House District 75), the Court concluded that race was Virginia’s primary motivator. But it also found that
the Commonwealth’s use of race was justified by its need to avoid retrogression under § 5 of the VRA
and that its use of race was narrowly tailored to achieve that goal.
In a 2017 8-1 opinion authored by Justice Kennedy, the Supreme Court reversed the district court’s
decision with respect to the first eleven districts. The Court concluded that the lower court misread Miller
and other Supreme Court precedent in holding that race should be found to predominate only where a
district’s boundaries conflict with traditional districting principles. Non-compliance with these principles,
the Court explained, is “persuasive circumstantial evidence” that race was the legislature’s primary
motivator in drawing the district’s boundaries, but it is not a “threshold requirement or a mandatory
precondition” to prove that fact. The Court acknowledged the difficulty of showing that race
predominated when traditional districting principles are respected, conceding that none of its prior
decisions found that racial considerations predominated when traditional districting principles were
applied. At the same time, the Court recognized that districting principles are “numerous and malleable,”
and that a government could “construct a plethora of potential maps” that comply with these principles
while still using race as the predominant factor in drawing district boundaries.
The Court also concluded that judicial analysis of whether racial considerations predominated should not
be limited to those portions of a district’s boundaries that depart from traditional districting principles.
Because racial gerrymandering claims proceed on a district-by-district basis, the only way of ensuring
that all relevant evidence is examined is to “consider all of the lines of the district at issue.”
Finally, as to House District 75, the Court agreed that Virginia’s use of race was necessary to maintain
compliance with § 5 of the VRA and that it was narrowly tailored to that goal. Because the parties agreed
that compliance with § 5 is a compelling interest, the Court once again assumed that it was and focused its
discussion on whether Virginia’s use of race was narrowly tailored to that objective. In holding that
Virginia had sufficient reason to conclude that a BVAP of fifty-five percent was necessary to avoid
retrogression, the Court emphasized that states are not required to “determine precisely what percent
minority population” is needed to comply with the VRA; instead, states need only have “good reasons” to
support their identified targets. A stricter requirement, the Court observed, would not give governments
the “breathing room” needed to navigate the competing aims of the VRA and the Equal Protection Clause.
Bethune-Hill II
On remand, in 2017, the district court conducted another trial on the eleven remaining districts and found
that race was Virginia’s dominant motivator in drawing each. It then concluded that the Commonwealth

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lacked sufficient evidence to support its position that a fifty-five percent BVAP was necessary to comply
with § 5 of the VRA. All eleven districts were thus deemed unconstitutional.
Though the Attorney General of Virginia (representing the named defendants) declined to appeal the
district court’s ruling, the Virginia House of Delegates (which intervened in the case) appealed to the
Supreme Court. (Plaintiffs and the Virginia Attorney General have filed briefs in the Supreme Court
challenging the Virginia House of Delegate’s standing to pursue an appeal.) Unlike in Bethune-Hill I
where the district court’s legal analysis was at the heart of the appeal, the arguments in Bethune-Hill II are
focused primarily on the district court’s factual findings, which involve detailed district-by-district
analyses regarding the factors—political, practical, and racial—that underlie Virginia’s legislative map.
Given these fact-intensive issues, the Court’s decision in Bethune-Hill II is unlikely to significantly alter
the Court’s racial gerrymandering jurisprudence. It is also unlikely to resolve whether compliance with
the non-retrogression mandate of § 5 is a compelling interest because both parties agree that it is and
because that provision is no longer operative (except in narrow circumstances) because of the Court’s
decision in Shelby County. Still, the Court’s decision could shed some light on the level of deference
owed to states and other governments in drawing legislative maps. In its brief, the Virginia House of
Delegates contends that the district court ignored the Supreme Court’s admonition that courts must
“exercise extraordinary caution” in evaluating whether race was the dominant motivator behind a
district’s boundaries, particularly as states are “always aware” of race when redistricting. By contrast, the
plaintiffs argue that the district court complied with Supreme Court precedent to the letter. However the
Court resolves this dispute, its decision could provide lower courts with concrete guidance on the level of
deference federal courts must accord states navigating the redistricting process.
The Court’s decision could also clarify when a government entity may rely on compliance with the VRA
to justify its use of race in redistricting. With regard to Bethune-Hill I’s holding that a state need only
have “good reasons” to believe that its use of race was necessary to comply with the VRA, the district
court found that Virginia fell short of this standard because it did not conduct a sufficiently individualized
analysis for each of the eleven remaining districts on whether a fifty-five percent BVAP target was
necessary for VRA compliance. Now on appeal, the Virginia House of Delegates claims that the district
court applied an excessively stringent evidentiary standard that does not give governments the “breathing
room” Bethune I said they are entitled to in determining what racial composition is needed to avoid
retrogression. The Court’s decision could give additional guidance on how likely a VRA violation must
be before a government may elevate race over other redistricting principles in drawing district boundaries.
More generally, Bethune-Hill II illustrates the difficulties states face in drawing legislative maps that
comply with both the VRA and the Equal Protection Clause’s limitations on the use of race in
redistricting. These are not, however, the only hurdles they face. In addition to avoiding VRA and racial-
gerrymandering liability, states must comply with the Constitution’s requirement that legislative districts
contain roughly the same number of persons (one person one vote), while simultaneously balancing the
various political objectives—such as protecting incumbents or maintaining a partisan balance in a
congressional delegation—that have traditionally played a role in redistricting. All of this, moreover, must
often be accomplished swiftly (sometimes under extreme time pressure) to ensure that a lawful legislative
map is in place for the post-census elections. And these complexities do not only impact state legislative
maps. While Bethune-Hill II involves a challenge to Virginia’s state legislative map, the Supreme Court’s
racial gerrymandering jurisprudence also applies to congressional district maps, which are predominantly
prepared by state legislatures.

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Author Information

Benjamin T. Hayes

Legislative Attorney

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