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Court gives new guidance on racial gerrymandering

March 1, 2017 by Lyle Denniston


Virginia State Capitol (credit: faungg)

With just three years to go before state legislatures begin to face a new task of redrafting election district maps after a new Census, the Supreme Court on Wednesday moved to further clarify when they may use the race of voters as a decisive factor. The new ruling, the latest in a series dealing with the issue going back to 1993, tightened somewhat the option of using race, although it did not go as far as one Justice – Clarence Thomas – wanted it to go.

Under the new ruling, written by Justice Anthony M. Kennedy with the full support of five other Justices, state legislatures generally will not be able to use race as the main redistricting factor even if a new map does not violate any traditional rules for districting – such as avoiding bizarre shapes and breaking up communities of interest, such as counties, towns or economic identities. The decision came in the case of Bethune-Hill v. Virginia State Board of Elections.

The decision overturned a ruling by a federal trial court in Virginia that the state’s legislature did not make unconstitutional use of race when it drew new lines for 11 of the 100 seats in the lower house, the House of Delegates after the 2010 Census. The legislature decided that each of those districts had to have a minimum black population of 55 percent in order to avoid violating the federal Voting Rights Act by diminishing the election power of minority voters in choosing new delegates.

The trial court had ruled that, if race was used without violating any other redistricting rules, it was valid. Only such a conflict, that court said, makes the use of race unconstitutional as a form of discrimination.

That is the result the Supreme Court overturned. Even if a new map satisfies all of the customary requirements for new districts, the map may still be unconstitutional if race was the guiding factor. Conflict with traditional principles might help prove that predominance, the Justices ruled, but that is not necessary to show unconstitutionality.

In the practical world of redistricting, that declaration by the court is almost certain to compel state legislatures to be newly cautious in how race is considered. While the court has never barred all use of race as a redistricting factor, and in fact has conceded that legislators always are aware of it because minority voters tend generally to vote for Democratic candidates, the new ruling and prior decisions on the subject give the predominance factor heavy weight when a new map is challenged as having been based on racial gerrymandering.

Although Wednesday’s decision ordered the trial court to make a new review of whether the 11 districts were, in fact, drawn with race as the predominant factor, the Justices upheld another part of the trial court ruling that race had been validly used as a factor in drafting a twelfth district where the lines also had been challenged. That was adequately justified, according to the majority.

Justice Kennedy’s opinion was joined in full by Chief Justice John G. Roberts, Jr., and Justices Stephen G. Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor. A seventh member, Justice Samuel A. Alito, Jr., wrote separately to say he agreed with most of the result but would have used a more demanding test for judging when race had predominated in a redistricting plan.

The eighth Justice (there is still a vacancy) – Justice Thomas – wanted to go even further than the Kennedy opinion had gone. He would have ruled that it is always unconstitutional when a legislature relies in a predominant way on race in redistricting, and he thus would have struck down outright all 12 of the districts at issue in the case.

A claim of racial gerrymandering is one of two kinds of constitutional challenges to redistricting maps drawn by legislatures for seats in those chambers and also for seats in the U.S. House of Representatives. As the details of the new Virginia case again showed, the court has found itself repeatedly trying to clarify what the constitutional rules allow or do not allow.

The other kind of constitutional claim against new districting maps – called partisan gerrymandering – involves the long-running practice of drawing new district lines to favor one political party’s candidates over their rivals. The Supreme Court has never outlawed partisan gerrymandering, because it has never found a legal formula for judging that claim.

However, it will soon be asked to try again, when a closely watched case from Wisconsin reaches the Justices in a planned appeal by state officials from a ruling by a lower court fashioning just such a legal standard. It is unclear when the Justices will act on that appeal after it is filed.

Legendary journalist Lyle Denniston is Constitution Daily’s Supreme Court correspondent. Denniston has written for us as a contributor since June 2011 and has covered the Supreme Court since 1958. His work also appears on, where this story first appeared.

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