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Supreme Court Revives Racial Gerrymandering Challenge in Virginia

The Supreme Court ruled today that 11 majority-minority voting districts in Virginia must be reexamined for potential racial bias. The districts at issue were all redrawn following the 2010 census, with the goal of establishing a 55 percent black voting age population, or BVAP, in each.

Black voters in Virginia sued, alleging that the new districts concentrated minority votes into fewer districts, making Virginia's remaining districts whiter and more conservative. The Supreme Court did not weigh in on whether race had been impermissibly used in fashioning the 11 districts, but did rule that the lower court must review the districts once again -- providing at least a temporary victory to the challengers.

Unjustified Racial Classifications Alone Suffice

A lower three-judge district court panel had erred when it rejected the challengers' suit on the grounds that they had not shown that race was the predominating factor behind the redistricting, the Supreme Court explained.

In the district court's view, racial considerations could predominate only if there was actual conflict with traditional redistricting criteria. If the redistricting could be justified by normal criteria, then, race could not predominate.

Relying on such post hoc justifications, the Supreme Court said, was incorrect. By following race-neutral redistricting factors, "a state could construct a plethora of potential maps that look consistent with traditional, race-neutral principles," the Court acknowledged. "But if race for its own sake is the overriding reason for choosing one map over others, race still may predominate." Thus, a conflict between the plan and traditional criteria "is not a threshold requirement or a mandatory precondition."

"The Equal Protection Clause does not prohibit misshapen districts," Justice Kennedy wrote for the majority. "It prohibits unjustified racial classifications."

Further, when such a conflict is identified, the Supreme Court continued, a reviewing court "should not confine its analysis to the conflicting portions of the lines." Instead courts must take a holistic look at racial predominance, without "divorc[ing] any portion of the lines -- whatever their relationship to traditional principles -- from the rest of the district."

A Twelfth District Survives Review

Those 11 districts will now be reviewed again in light of the Court's opinion. But that review may not be fatal, given the Supreme Court's treatment of the 12th district at issue in the case, District 75.

District 75, the home of Virginia General Assembly Delegate Roslyn C. Tyler, was one of the main origins of the redistricting's 55 percent BVAP goal. According to the district court, the 55 percent goal was "based largely on concerns pertaining to the re-election of Delegate Tyler." When the redistricting plan was passed, Tyler was one of only two dissenting members of the state Black Caucus. Her main concern was that the BVAP in her district was too low.

But those considerations did not render District 75 an unconstitutional racial gerrymander, the Supreme Court ruled. While race predominated in the redistricting, those racial considerations were narrowly tailored to the comply with the preclearance requirements of Voting Rights Act, the Court found.

"The question is whether the State had 'good reasons' to believe a 55 percent BVAP floor was necessary to avoid liability under §5" of the VRA, the Court explained.

The state did have good reason, the Court concluded. Finding 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."

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