Bethune-Hill v. Virginia State Bd. of Elections
Bethune-Hill v. Virginia State Bd. of Elections
Opinion
This case addresses whether the Virginia state legislature's consideration of race in drawing new lines for 12 state legislative districts violated the Equal Protection Clause of the Fourteenth Amendment. After the 2010 census, some redistricting was required to ensure proper numerical apportionment for the Virginia House of Delegates. It is undisputed that the boundary lines for the 12 districts at issue were drawn with a goal of ensuring that each district would have a black voting-age population (BVAP) of at least 55%.
Certain voters challenged the new districts as unconstitutional racial gerrymanders. The United States District Court for the Eastern District of Virginia, constituted as a three-judge district court, rejected the challenges as to each of the 12 districts. As to 11 of the districts, the District Court concluded that the voters had not shown, as this Court's precedent requires, "that race was the predominant factor motivating the legislature's decision to place a significant number of voters within or without a particular district."
Miller v. Johnson,
On appeal to this Court, the challengers contend that the District Court employed an incorrect legal standard for racial predominance *795 and that the legislature lacked good reasons for its use of race in District 75. This Court now affirms as to District 75 and vacates and remands as to the remaining 11 districts.
I
After the 2010 census, the Virginia General Assembly set out to redraw the legislative districts for the State Senate and House of Delegates in time for the 2011 elections. In February 2011, the House Committee on Privileges and Elections adopted a resolution establishing criteria to guide the redistricting process. Among those criteria were traditional redistricting factors such as compactness, contiguity of territory, and respect for communities of interest. But above those traditional objectives, the committee gave priority to two other goals. First, in accordance with the principle of one person, one vote, the committee resolved that "[t]he population of each district shall be as nearly equal to the population of every other district as practicable," with any deviations falling "within plus-or-minus one percent."
The committee's criteria presented potential problems for 12 House districts. Under § 5 as Congress amended it in 2005, "[a] plan leads to impermissible retrogression when, compared to the plan currently in effect (typically called a 'benchmark plan'), the new plan diminishes the number of districts in which minority groups can 'elect their preferred candidates of choice' (often called 'ability-to-elect' districts)."
Harris v. Arizona Independent Redistricting Comm'n,
578 U.S. ----, ---- - ----,
Seeking to maintain minority voters' ability to elect their preferred candidates in these districts while complying with the one-person, one-vote criterion, legislators concluded that each of the 12 districts "needed to contain a BVAP of at least 55%."
Who first suggested the 55% BVAP criterion and how the legislators agreed upon it was less clear from the evidence. See
In April 2011, the General Assembly passed Delegate Jones' plan with broad support from both parties and members of the Black Caucus. One of only two dissenting members of the Black Caucus was Delegate Tyler of District 75, who objected solely on the ground that the 55.4% BVAP in her district was too low. In June 2011, the U.S. Department of Justice precleared the plan.
Three years later, before this suit was filed, a separate District Court struck down Virginia's third federal congressional district (not at issue here), based in part on the legislature's use of a 55% BVAP threshold. See
Page v. Virginia State Bd. of Elections,
After a 4-day bench trial, a divided District Court ruled for the State. With respect to each challenged district, the court first assessed whether "racial considerations predominated over-or 'subordinated'-traditional redistricting criteria."
When it turned to District 75, the District Court found that race did predominate. The court reasoned that "[a]chieving a 55% BVAP floor required 'drastic maneuvering' that is reflected on the face
*797
of the district."
Judge Keenan dissented as to all 12 districts. She concluded that the majority applied an incorrect understanding of racial predominance and that Delegate Jones' analysis of District 75 was too "general and conclusory."
II
Against the factual and procedural background set out above, it is now appropriate to consider the controlling legal principles in this case. The Equal Protection Clause prohibits a State, without sufficient justification, from "separat[ing] its citizens into different voting districts on the basis of race."
Miller,
In light of these considerations, this Court has held that a plaintiff alleging racial gerrymandering bears the burden "to show, either through circumstantial evidence of a district's shape and demographics or more direct evidence going to legislative purpose, that race was the predominant factor motivating the legislature's decision to place a significant number of voters within or without a particular district."
Miller,
A
The challengers first argue that the District Court misunderstood the relevant precedents when it required the challengers to establish, as a prerequisite to showing racial predominance, an actual conflict between the enacted plan and traditional *798 redistricting principles. The Court agrees with the challengers on this point.
A threshold requirement that the enacted plan must conflict with traditional principles might have been reconcilable with this Court's case law at an earlier time. In
Shaw I,
the Court recognized a claim of racial gerrymandering for the first time. See
The Court's opinion in
Miller,
however, clarified the racial predominance inquiry. In particular, it rejected the argument that, "regardless of the legislature's purposes, a plaintiff must demonstrate that a district's shape is so bizarre that it is unexplainable other than on the basis of race."
The Court addressed racial gerrymandering and traditional redistricting factors again in
Shaw v. Hunt,
The State's theory in this case is irreconcilable with
Miller
and
Shaw II
. The State insists, for example, that the harm from racial gerrymandering lies not in racial line-drawing
per se
but in grouping voters of the same race together when they otherwise lack shared interests. But "the constitutional violation" in racial gerrymandering cases stems from the "racial purpose of state action, not its stark manifestation."
Miller, supra, at 913,
The State contends further that race does not have a prohibited effect on a district's lines if the legislature could have drawn the same lines in accordance with traditional criteria. That argument parallels the District Court's reasoning that a reapportionment plan is not an express racial classification unless a racial purpose is apparent from the face of the plan based on the irregular nature of the lines themselves.
*799
See
Traditional redistricting principles, moreover, are numerous and malleable. The District Court here identified no fewer than 11 race-neutral redistricting factors a legislature could consider, some of which are "surprisingly ethereal" and "admi[t] of degrees."
For these reasons, a conflict or inconsistency between the enacted plan and traditional redistricting criteria is not a threshold requirement or a mandatory precondition in order for a challenger to establish a claim of racial gerrymandering. Of course, 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.
As a practical matter, in many cases, perhaps most cases, challengers will be unable to prove an unconstitutional racial gerrymander without evidence that the enacted plan conflicts with traditional redistricting criteria. In general, legislatures that engage in impermissible race-based redistricting will find it necessary to depart from traditional principles in order to do so. And, in the absence of a conflict with traditional principles, it may be difficult for challengers to find other evidence sufficient to show that race was the overriding factor causing neutral considerations to be cast aside. In fact, this Court to date has not affirmed a predominance finding, or remanded a case for a determination of predominance, without evidence that some district lines deviated from traditional principles. See
Alabama,
575 U.S., at ----, 135 S.Ct., at 1265-1266 ;
Hunt v. Cromartie,
B
The challengers submit that the District Court erred further when it considered the legislature's racial motive only to the extent that the challengers identified deviations from traditional redistricting criteria that were attributable to race and not to some other factor. In the challengers' view, this approach foreclosed a holistic analysis of each district and led the District Court to give insufficient weight to the 55% BVAP target and other relevant evidence that race predominated. Again, this Court agrees.
As explained, showing a deviation from, or conflict with, traditional redistricting principles is not a necessary prerequisite to establishing racial predominance.
Supra,
at 799. But even where a challenger alleges a conflict, or succeeds in
*800
showing one, the court should not confine its analysis to the conflicting portions of the lines. That is because the basic unit of analysis for racial gerrymandering claims in general, and for the racial predominance inquiry in particular, is the district. Racial gerrymandering claims proceed "district-by-district."
Alabama,
575 U.S., at ----, 135 S.Ct., at 1265. "We have consistently described a claim of racial gerrymandering as a claim that race was improperly used in the drawing of the boundaries of one or more
specific electoral districts
."
Ibid.
And
Miller
's basic predominance test scrutinizes the legislature's motivation for placing "a significant number of voters within or without a particular district."
This is not to suggest that courts evaluating racial gerrymandering claims may not consider evidence pertaining to an area that is larger or smaller than the district at issue. The Court has recognized that "[v]oters, of course, can present statewide evidence in order to prove racial gerrymandering in a particular district." Alabama, supra, at ----, 135 S.Ct., at 1265 (emphasis deleted). Districts share borders, after all, and a legislature may pursue a common redistricting policy toward multiple districts. Likewise, a legislature's race-based decisionmaking may be evident in a notable way in a particular part of a district. It follows that a court may consider evidence regarding certain portions of a district's lines, including portions that conflict with traditional redistricting principles.
The ultimate object of the inquiry, however, is the legislature's predominant motive for the design of the district as a whole. A court faced with a racial gerrymandering claim therefore must consider all of the lines of the district at issue; any explanation for a particular portion of the lines, moreover, must take account of the districtwide context. Concentrating on particular portions in isolation may obscure the significance of relevant districtwide evidence, such as stark splits in the racial composition of populations moved into and out of disparate parts of the district, or the use of an express racial target. A holistic analysis is necessary to give that kind of evidence its proper weight.
C
The challengers ask this Court not only to correct the District Court's racial predominance standard but also to apply that standard and conclude that race in fact did predominate in the 11 districts where the District Court held that it did not. For its part, the State asks the Court to hold that, even if race did predominate in these districts, the State's predominant use of race was narrowly tailored to the compelling interest in complying with § 5.
The Court declines these requests. "[O]urs is a court of final review and not first view."
Department of Transportation v. Association of American Railroads,
575 U.S. ----, ----,
III
The Court now turns to the arguments regarding District 75. Where a
*801
challenger succeeds in establishing racial predominance, the burden shifts to the State to "demonstrate that its districting legislation is narrowly tailored to achieve a compelling interest."
Miller,
Turning to narrow tailoring, the Court explained the contours of that requirement in Alabama . When a State justifies the predominant use of race in redistricting on the basis of the need to comply with the Voting Rights Act, "the narrow tailoring requirement insists only that the legislature have a strong basis in evidence in support of the (race-based) choice that it has made." 575 U.S., at ----, 135 S.Ct., at 1274 (internal quotation marks omitted). That standard does not require the State to show that its action was "actually ... necessary" to avoid a statutory violation, so that, but for its use of race, the State would have lost in court. Ibid. (internal quotation marks omitted). Rather, the requisite strong basis in evidence exists when the legislature has " good reasons to believe" it must use race in order to satisfy the Voting Rights Act, "even if a court does not find that the actions were necessary for statutory compliance." Ibid. (internal quotation marks omitted).
The Court now finds no error in the District Court's conclusion that the State had sufficient grounds to determine that the race-based calculus it employed in District 75 was necessary to avoid violating § 5. As explained, § 5 at the time barred Virginia from adopting any districting change that would "have the effect of diminishing the ability of [members of a minority group] to elect their preferred candidates of choice."
Under the facts found by the District Court, the legislature performed that kind of functional analysis of District 75 when deciding upon the 55% BVAP target. Redrawing this district presented a difficult task, and the result reflected the good-faith efforts of Delegate Jones and his colleagues to achieve an informed bipartisan consensus. Delegate Jones met with Delegate Tyler "probably half a dozen times to configure her district" in order to avoid retrogression.
*802
The challengers' responses ask too much from state officials charged with the sensitive duty of reapportioning legislative districts. First, the challengers contest the sufficiency of the evidence showing that Delegate Jones in fact performed a functional analysis, in part because that analysis was not memorialized in writing. But the District Court's factual findings are reviewed only for clear error. See
Easley v. Cromartie,
The challengers argue further that the drafters of the plan had insufficient evidence to justify a 55% BVAP floor. The 2005 elections were idiosyncratic, the challengers contend; moreover, demographic information about the prison in the district is absent from the record, and Delegate Tyler's perspective was influenced by a personal interest in reelection. That may have been so, and for those reasons, it is possible that, if the State had drawn District 75 with a BVAP below 55% and had sought judicial preclearance, a court would have found no § 5 violation. But that is not the question here. "The law cannot insist that a state legislature, when redistricting, determine
precisely
what percent minority population § 5 demands."
Alabama,
575 U.S., at ----, 135 S.Ct., at 1273. The question is whether the State had "
good reasons
" to believe a 55% BVAP floor was necessary to avoid liability under § 5.
Ibid.
(internal quotation marks omitted). The State did have good reasons under these circumstances. Holding otherwise would afford state legislatures too little breathing room, leaving them "trapped between the competing hazards of liability" under the Voting Rights Act and the Equal Protection Clause.
Vera, supra, at 977,
As a final point, the challengers liken the 55% BVAP floor here to the "mechanically numerical view" of § 5 this Court rejected in Alabama . 575 U.S., at ----, 135 S.Ct., at 1273. But Alabama did not condemn the use of BVAP targets to comply with § 5 in every instance. Rather, this Court corrected the "misperception" that § 5 required a State to "maintai[n] the same population percentages in majority-minority districts as in the prior plan." Id., at ---- - ----, 135 S.Ct., at 1273. "[I]t would seem highly unlikely," the Court explained, that reducing a district's BVAP "from, say, 70% to 65% would have a significant impact on the black voters' ability to elect their preferred candidate." Id., at ----, 135 S.Ct., at 1273. Yet reducing the BVAP below 55% well might have that effect in some cases. The record here supports the legislature's conclusion that this was one instance where a 55% BVAP was necessary for black voters to have a functional working majority.
IV
The Court's holding in this case is controlled by precedent. The Court reaffirms the basic racial predominance analysis explained in Miller and Shaw II, and the basic narrow tailoring analysis explained in Alabama . The District Court's judgment as to District 75 is consistent with these principles. Applying these principles to the remaining 11 districts is entrusted to the District Court in the first instance.
The judgment of the District Court is affirmed in part and vacated in part. The case is remanded for further proceedings consistent with this opinion.
It is so ordered.
*803 Justice ALITO, concurring in part and concurring in the judgment.
I join the opinion of the Court insofar as it upholds the constitutionality of District 75.
Ante,
at 800 - 802. The districting plan at issue here was adopted prior to our decision in
Shelby County v. Holder,
570 U.S. ----,
I concur in the judgment of the Court insofar as it vacates and remands the judgment below with respect to all the remaining districts. Unlike the Court, however, I would hold that all these districts must satisfy strict scrutiny. See
post,
at 803 - 804 (THOMAS, J., concurring in judgment in part and dissenting in part); see also
League of United Latin American Citizens v. Perry,
Justice THOMAS, concurring in the judgment in part and dissenting in part.
Appellants contend that 12 of Virginia's state legislative districts are unconstitutional racial gerrymanders. The three-judge District Court rejected their challenge, holding that race was not the legislature's predominant motive in drawing 11 of the districts and that the remaining district survives strict scrutiny. I would reverse the District Court as to all 12 districts. I therefore concur in the judgment in part and dissent in part.
I
I concur in the Court's judgment reversing the District Court's decision to uphold 11 of the 12 districts at issue in this case-House Districts 63, 69, 70, 71, 74, 77, 80, 89, 90, 92, and 95. I do not agree, however, with the Court's decision to leave open the question whether race predominated in those districts and, thus, whether they are subject to strict scrutiny.
Ante,
at 800 - 801. Appellees (hereinafter State) concede that the legislature intentionally drew all 12 districts as majority-black districts. See,
e.g.,
Brief for Appellees 1 ("[T]he legislature sought to achieve a [black voting-age population] of at least 55% in adjusting the lines of the 12 majority-minority districts"). That concession, in my view, mandates strict scrutiny as to each district. See
Bush v. Vera,
II
I disagree with the Court's judgment with respect to the remaining district, District *804 75. The majority affirms the District Court's holding that District 75 is subject to strict scrutiny. With this I agree, because, as with the other 11 districts, the State conceded that it intentionally drew District 75 as a majority-black district.
I disagree, however, with the majority's determination that District 75 satisfies strict scrutiny. This Court has held that a State may draw distinctions among its citizens based on race only when it "is pursuing a compelling state interest" and has chosen "narrowly tailored" means to accomplish that interest.
Shaw v. Hunt,
A
As an initial matter, the majority errs by "assum[ing], without deciding, that the State's interest in complying with the Voting Rights Act was compelling."
Ante,
at 801. To be sure, this Court has previously assumed that a State has a compelling interest in complying with the Voting Rights Act. But it has done so only in cases in which it has not upheld the redistricting plan at issue. See,
e.g.,
Miller v. Johnson,
"[C]ompliance with federal antidiscrimination laws cannot justify race-based districting where the challenged district was not reasonably necessary under a
constitutional
*805
reading and application of those laws."
I have since concluded that § 5 is "unconstitutional."
Northwest Austin Municipal Util. Dist. No. One v. Holder,
B
Even if compliance with § 5 were a compelling interest, the State failed to narrowly tailor its use of race to further that interest.
1
This Court has explained that "[a]ny preference based on racial or ethnic criteria must necessarily receive a most searching examination."
Wygant v. Jackson Bd. of Ed.,
I have serious doubts about the Court's standard for narrow tailoring, as characterized today and in
AlabamaLegislative Black Caucus v. Alabama,
575 U.S. ----,
That approach to narrow tailoring-deferring to a State's belief that it has good reasons to use race-is "strict" in name only. To the extent the Court applies *806 Alabama to dilute the well-settled standard established by our precedents, I demur.
2
Applying the proper narrow-tailoring standard for state classifications based on race, I conclude that the State did not narrowly tailor its use of race to comply with § 5. As the majority recognizes, § 5 requires a state redistricting plan to maintain the black population's ability to elect the candidate of its choice in the district at issue-in other words, the State must "avoid retrogression" in the new district. Ante, at 801.
The majority observes that the redistricting plan's architect, Delegate Chris Jones, performed a "functional analysis" in deciding that District 75 required a 55% black voting-age population-as opposed to some other percentage-to avoid retrogression. Ibid. The Court notes that, in arriving at the 55% threshold, Delegate Jones considered turnout rates, the results of the primary and general elections in 2005, and the district's "large population of disenfranchised black prisoners." Ante, at 801 - 802 . He also met with the incumbent delegate for District 75 "probably half a dozen times" and "discussed the district with incumbents from other majority-black districts." Ante, at 801 (internal quotation marks omitted). Those efforts add up, in the majority's view, to a "careful assessment of local conditions and structures." Ante, at 801.
I do not agree that those efforts satisfy narrow tailoring. Delegate Jones admitted that he was "not aware" of "any retrogress[ion] analysis" performed by "h[im] or any persons that worked with him in the development of the [redistricting] plan." App. 288-289. Instead, he merely "look[ed] at" the "percentage of black population and the percentage of black voting age population," "looked at what happened over the last 10 year period given the existing population and demographic shifts," and "tried to restore back" the levels of black voting-age population from the previous maps.
Id.,
at 290. That approach was misguided, because § 5 "does not require maintaining the same population percentages in majority-minority districts as in the prior plan."
Alabama,
The other evidence cited by the majority is similarly weak. The majority points to the " 'half a dozen' " meetings between Delegate Jones and the incumbent delegate for District 75,
ante,
at 801, but it is not apparent from the record whether District 75's incumbent is the current black population's candidate of choice. Moreover, the incumbent delegate may well have wanted her district to be electorally safer than the Voting Rights Act requires. It also is not obvious to me that Delegate Jones was seeking to avoid retrogression in District 75 when he met with incumbent delegates from
other
majority-black districts.
Ibid.
In my view, those efforts fall far short of establishing that a 55% black voting-age population bears a more " 'exact connection' " to the State's interest than any alternative percentage.
Wygant,
* * *
In reaching these conclusions, I recognize that this Court is at least as responsible as the state legislature for these racially gerrymandered districts. As explained above, this Court has repeatedly failed to decide whether compliance with the Voting
*807
Rights Act is a compelling governmental interest. See
supra,
at 804, and n. 2. Indeed, this Court has refused even to decide whether § 5 is constitutional, despite having twice taken cases to decide that question. Compare Juris. Statement in
Northwest Austin,
O.T. 2008, No. 08-322, p. i (presenting the question "[w]hether ... the § 5 preclearance requirement can be applied as a valid exercise of Congress's remedial powers under the Reconstruction Amendments"), and
Shelby County v. Holder,
This Court has put the State in a similar bind with respect to narrow tailoring. To comply with § 5, a State necessarily must make a deliberate and precise effort to sort its citizens on the basis of their race. But that result is fundamentally at odds with our "color-blind" Constitution, which "neither knows nor tolerates classes among citizens."
Plessy v. Ferguson,
Despite my sympathy for the State, I cannot ignore the Constitution's clear prohibition on state-sponsored race discrimination. "The Constitution abhors classifications based on race, not only because those classifications can harm favored races or are based on illegitimate motives, but also because every time the government places citizens on racial registers ..., it demeans us all."
Grutter,
It is unclear from the record whether the State sought to justify its use of race on other grounds. I would leave it to the District Court to evaluate in the first instance any other asserted compelling interest, including whether such interest has been forfeited.
See also
Shaw v. Hunt,
Reference
- Full Case Name
- Golden BETHUNE-HILL, Et Al., Appellants v. VIRGINIA STATE BOARD OF ELECTIONS, Et Al.
- Cited By
- 62 cases
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- Published