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Dec. 5 — The U.S. Supreme Court was searching for clarity in a murky area of the law in a redistricting double-header at the court Dec. 5 ( Bethune-Hill v. Virginia, U.S., No. 15-680 , argued 12/5/16 and McCrory v. Harris, U.S., No. 15-1262 , argued 12/5/16 ).
The court heard racial gerrymandering challenges to Virginia and North Carolina redistricting maps. At issue is whether those states unconstitutionally allowed race to “predominate” during the redistricting process.
It was unclear following oral arguments which way the court was likely to go. The justices struggled with the need to provide plaintiffs with flexibility to prove that states unconstitutionally considered race when drawing new voter maps, and the need to provide states with the flexibility to actually draw those maps.
The rules the Supreme Court has already put in place for racial gerrymandering have turned the Supreme Court into a fact-finding court, Justice Stephen G. Breyer said. For example, in considering the North Carolina case, the court got into the nitty gritty of a conversation between legislators that took place several years ago.
But the open-ended rules have also been an “invitation for litigation,” Justice Samuel A. Alito Jr. said.
In fact, the two districts at issue in the North Carolina case are in their fifth gerrymandering dispute before the high court.
Right out of the gate Chief Justice John G. Roberts Jr. highlighted one difficulty in deciding whether race predominates during the process of drawing voter maps.
“I’m not quite sure I understand how you assess predominance,” Roberts asked in the first question of the morning.
Let’s “say you’re trying to select people for a particular board or something, and you say they have to come from a city with more than 500,000 people, absolutely. And then you say, and they have to come from such a city in California. Can’t be anywhere else,” Roberts said.
“Now, which is the predominant factor? The 500,000 or California?”
There can be difficult situations where it’s hard to tell, Marc Elias, of Perkins Coie, Washington, who represented those challenging the state maps in both cases.
Here, however, the states told us that race was predominant by setting an arbitrary “BVAP,” or Black Voting Age Population, he said.
In Virginia, for example, the state set a 55 percent BVAP under which certain districts weren’t allowed to fall, Elias said.
The state said that was necessary to comply with the Voting Rights Act, which requires that states ensure that there are districts where minorities can elect the person of their choosing.
But that “one-size-fits-all” floor allowed the state 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,” Elias said.
The court below, however, upheld those maps, finding that the state didn’t use race in an unconstitutional way.
In doing so, the lower court “created out of whole cloth a new legal standard” that required that the challenged map have a conflict with “traditional redistricting criteria"—like compactness and contiguity, Elias said.
That “confers a sort of judicial immunity to visually appealing districts that nevertheless were drawn with the predominant purpose of placing voters within and without based solely on the color of their skin,” he said.
That test was problematic for swing-Justice Anthony M. Kennedy.
Predominance “is designed to measure intent when there are multiple causes,” he said.
If the lower court’s test is that if the districts are conventional in all other respects, then a court can’t consider the use of race. “I have a problem with that,” Kennedy said.
That’s why plaintiffs should have more flexibility in showing constitutional violations, Elias said.
Like most trials, there’s a “mosaic of evidence,” not just one “smoking gun,” Elias said.
But redistricting is “very complicated,” Alito said. Already the state “legislature has to redistrict a large number of districts in a short amount of time using a very multifactor, vague predominance standard.”
Making the rules more open-ended seems to encourage litigation, Alito said.
Agreeing, Paul Clement, of Kirkland & Ellis LLP, Washington, who represented both Virginia and North Carolina, said “given the stakes, it’s going to mean that lots more State legislatures get sued over districts that don’t even look particularly suspicious.”
“And this case is the perfect example,” Clement said, referring to the Virginia case.
The redistricting plan in Virginia was considered “a bipartisan success story,” before it was challenged, Clement said.
“These districts existed for four years and two complete election cycles before anybody perceived there was a racial gerrymander lurking here.”
“You go from a bipartisan success story” to four years later when the challengers “draw a racial gerrymandering charge” and the state has “to litigate for years based on this theoretical possibility that maybe, just maybe, in drawing these square lines, someone took” account of race too much, Clement said.
Clement urged the court to “pause and reflect” on where its gerrymandering jurisprudence has gotten the country.
It’s now “exquisitely difficult” for states to draw maps that comply with the Voting Rights Act, Clement said.
States have to consider race under the Voting Rights Act, but they have to do it just right or they risk a lawsuit, he suggested.
Given that difficulty, “we want to have deference to State legislatures,” he said.
Breyer too noted that there is an inherent problem with allowing the use of race to help minorities elect their candidates and not allowing the state some leeway in determining how to do that.
“And no one, I think, has a good answer” to that problem, Breyer said.
Without providing that answer, Roberts himself has suggested that the procedure by which the Supreme Court hears redistricting disputes might be contributing to the problem.
Such cases are heard by a three-judge district court panel, and then the cases are immediately appealable to the high court.
That means that instead of letting issues “percolate” in the federal circuit courts, the Supreme Court has to decide the case on its own, Roberts said last term.
The Supreme Court is expected to decide these cases—on its own—by June.
To contact the reporters on this story: Kimberly Strawbridge Robinson in Washington at firstname.lastname@example.org
To contact the editor responsible for this story: Jessie Kokrda Kamens at email@example.com
Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.
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