Is there a workable way to judge racial gerrymanders?

Lyle Denniston, Constitution Daily's Supreme Court correspondent, was at Monday's two-hour Supreme Court arguments about voting districts and race, where the eight Justices sought to make progress on an elusive issue.

Only one thing was really clear after the Supreme Court spent two hours on Monday trying anew to craft a workable constitutional standard for judging when redistricting maps are based too heavily upon the race of voters.  It was that the Justices are growing increasingly frustrated that they have to face repeatedly a renewal of that elusive pursuit.   They did not make notable progress on the problem this time, either.

Several times before, the court has said quite clearly that legislators can take racial factors into account in drawing new election boundaries after each 10-year census, but declared that it is unconstitutional if race is “the predominant factor.”  How to define that phrase occupied the court in back-to-back hearings Monday, on a case involving maps for electing members of Virginia’s legislature (Bethune-Hill v. Virginia Board of Elections) and on a case involving maps for elections in two congressional districts in North Carolina (McCrory v. Harris).

Two lawyers appeared in both of the cases – Washington, D.C., attorney Marc E. Elias for the voters claiming an unconstitutional racial gerrymander in each case, and Washington attorney Paul D. Clement for the two states.  Elias had the support in both cases from lawyers for the Obama administration.

From the opening question, asked by Chief Justice John G. Roberts, Jr., to attorney Elias – “How do you understand predominance?” – to the end of the hearings more than two hours later, the Justices explored a wide array of alternative ways to look at that question.

Is a court to rely simply on numbers (how many black voters were packed into a district compared to how many whites were moved out, into adjoining districts); or is a court to inquire into what the legislators’ intentions were and how is that to be proved.

Or should a court find that race was too dominant only if the legislature drew oddly-shaped districts or sliced up cities and counties as the only ways to concentrate black voters; or should a court require those claiming a racial gerrymander to draw up competing maps to prove that the same political goals could be achieved without focusing on race; or should courts be more deferential to the state legislatures in the exceedingly difficult task of satisfying federal voting law as it seeks to assure that black voters have political power at the same time satisfying the Constitution’s mandate of racial equality.

Justice Samuel A. Alito, Jr., who seemed inclined to diminish the courts’ supervision of the redistricting process as a conservative judicial aspiration, nevertheless did seem to speak for all of the court as he mused that this process is “very, very complicated” because judges were having to apply “a multi-factor, vague predominance factor” which serves only as “an invitation to litigation.”  Maybe, he lamented, “there is no way around it.”

Justice Stephen G. Breyer offered an exaggerated complaint about the Supreme Court being put into the position of “the nineteenth court” to be reviewing the evidence of whether or not there was forbidden racial gerrymandering in redistricting disputes.

One complicating factor that repeatedly cropped up was that there is a very high correlation between the way many blacks vote and their party preference – Democratic – so it can be quite difficult to sort out when a Republican-controlled legislature is using blacks’ race as a proxy for curbing Democratic power at the polls – a permissible goal, at least up to a point – or when the legislators’ real goal was to discriminate unconstitutionally against those voters’ political power because of their race.  .  While Justices and lawyers, alike, talked of how difficult that was to determine, it was not clear that there was a consensus on how to do that.

Justice Sonia Sotomayor made an effort, not noticeably successful, to pull the arguments back to what she called “the constitutional evil” – that is, the use of race to guide government action.  “It’s easy to say it’s political,” she commented, so if a legislature has acted because of race, its redistricting plans should be nullified and should be sent back to re-draw the boundaries.  The comment served only to emphasize that the court was trying – here again, as at several times in prior rulings – to find a way to decide when race had been used as the determining goal in redistricting.

Attorney Clement answered her comment by saying, matter-of-factly, that the court did need “a mechanism as to when or if it was race” that had predominated.  He went on to say that it “would be profoundly damaging” if state legislatures were told by the courts that they could not be believed when they explained their redistricting maps as having been guided by politics, rather than by use.  Much of his argument was laced with references to the “sovereignty” of the states and their legislatures – a clear plea for judges to defer to them.

Attorney Elias focused his arguments in both cases on an attempt to simplify the “predominance” inquiry by stressing that the legislatures in both Virginia and North Carolina had started the process of redistricting by setting specific numbers targets – districts in which blacks already had a majority or a near-majority were loaded up even more with black voters (a minimum 50 percent was the goal in Virginia, 55 percent in North Carolina.

And, while he conceded that a mere numerical race target was not enough to prove that race predominated, he said that the specific aim “to corral black voters” into districts where they were already able to have their preferred candidates win was supported by very clear proof that the lawmakers had racial motives in mind.

Although it remains a possibility that the court might wind up splitting 4 to 4 in both cases, and thus deciding nothing for sure, the overall impression of Monday’s hearings was more of puzzlement than of division.

Legendary journalist Lyle Denniston is Constitution Daily’s Supreme Court correspondent. Denniston has written for us as a contributor since June 2011 and he has covered the Supreme Court since 1958. His work also appears on lyldenlawnews.com.