The Supreme Court announced Monday it will take its second look at whether Virginia’s Republican political leaders gerrymandered the state’s electoral maps in order to diminish the power of African American voters.
Last month, the justices upheld a plan imposed by a lower court that redrew some of the commonwealth’s congressional districts and created the possibility of electing a second black U.S. House member.
On Monday, the court said it would review a different court’s rejection of a challenge that said Republican leaders reduced the strength of minority voters by packing them into a dozen House of Delegates districts.
A three-judge panel had voted 2 to 1 that the districts were constitutional and that race had not been the primary consideration in drawing them.
The case will be considered in the new term that begins in October, and if the Supreme Court orders any changes in the districts, they would presumably take place in advance of the 2017 elections.
The Supreme Court is increasingly being asked to consider cases of alleged racial gerrymandering. Unlike the usual process involved in selecting which cases it will review, federal law leaves the court little discretion in deciding whether to review redistricting challenges.
Last year, the court sent back Alabama’s legislative redistricting plan, saying legislators had failed to find the legal sweet spot between districts drawn with enough minority voters that they can elect representatives of their choice but not with so many minority voters that surrounding districts are intentionally made safe for white Republicans.
The Virginia cases were brought by Marc E. Elias and funded by the National Democratic Redistricting Trust. Elias is general counsel to Hillary Clinton’s presidential campaign and worked on the campaign of now-Gov. Terry McAuliffe (D).
Virginia House Speaker William J. Howell (R-Stafford) said the three-judge panel in the current case “plainly laid out the constitutionality of Virginia’s House of Delegates redistricting plan and we are confident that upon review the Supreme Court will affirm the lower court ruling.”
Supporters of the plan noted that every member of the Legislative Black Caucus voted for it when it was drawn in 2011.
But support from black incumbents does not guarantee that the maps were fair, said Brian Cannon, executive director of OneVirginia2021, a nonprofit group pushing for nonpartisan redistricting.
“It’s not about the black legislators. It’s about the black voters, whether African American voters have been illegally packed into districts,” Cannon said. “This leaves a number of communities split. It wrings out competition from elections, and it only serves as an incumbent-protection racket.”
He added: “The Supreme Court has a chance to uphold good-government redistricting criteria in this case because what they’re faced with is a scenario in which the political process subverted all other good-government criteria in favor of politics.”
Richmond braced for a stalemate over redistricting in 2011, the first time since Reconstruction that political map-making had been undertaken by a divided legislature. But the GOP-led House and Democratic-led Senate struck an informal deal: Republicans in the House agreed to accept Senate lines drawn by Democrats, and Democrats in the Senate agreed to accept House lines drawn by Republicans.
Some Democrats complained at the time that the GOP could have drawn two additional majority-minority districts but chose not to. Many black legislators spoke in favor of the plan, saying that their views had been taken into account.
The deal sailed through the House on an 86-to-8 vote. Most of the resistance came from Republicans in the closely divided Senate, where the map was passed on a straight party-line vote of 22 to 18. Senate Republicans said at the time that the Democratic plan divided up too many counties and cities and contained districts that varied too widely in population.
More recently, House Democrats have begun complaining about the lines.
“We have a state that is essentially a 50-50, Republican-Democratic state and two-thirds of the House is controlled by the Republicans,” said House Minority Leader David J. Toscano (D-Charlottesville). “That only makes sense in terms of lines that are drawn to protect the incumbent Republican majority.”
That may not mean much to the justices. The court has shown a high tolerance for partisan gerrymandering aimed at protecting incumbents. But the Constitution forbids gerrymandering that relies too heavily on race, because it harms the political clout of minorities.
The lawsuit singled out 12 legislative districts for such criticism. But two of the three judges examining the plan said challengers had failed to prove that race was the predominant factor in drawing 11 of them.
Dissenting Judge Barbara Milano Keenan disagreed, saying the state’s leaders applied a “one-size-fits-all racial quota” to the otherwise dissimilar districts.
In the congressional case decided last month, the Supreme Court did not reach the question of whether Virginia lawmakers had intentionally packed minority voters in a way that diminished their strength. Instead, the court found that the Republican congressmen challenging the lower court’s decision did not have the legal standing to bring the suit.
The legislative redistricting case is Bethune-Hill v. Virginia Board of Elections.