By Rob Tyson

On December 5, the United States Supreme Court held hearings in McCrory v. Harris and Bethune-Hill v. Virginia State Board of Elections, two redistricting cases stemming from the drawing of congressional districts in North Carolina and state legislative districts in Virginia, respectively.  Historically, redistricting cases have been known to result in split decisions which makes the current eight-member composition of the Court particularly interesting for these cases.  The attached New York Times article offers a summary of oral argument.  See attached.

The Supreme Court may use these cases as an opportunity to provide clarity for states in drawing Congressional and legislative districts.  Pursuant to a string of Supreme Court cases interpreting the Constitution and the Voting Rights Act, states generally are required to consider race when drawing districts.  However, states may not use race as the predominant factor at the exclusion of traditional redistricting criteria.  Further complicating this analysis is the strong correlation between race and political party.  Historically, African-Americans are more likely to support Democratic candidates and whites are more likely to vote for Republicans.  Interestingly, gerrymandering based on partisanship is permissible, so determining whether districting lines were drawn due to partisan politics or for racial reasons is very difficult. For example, if the legislature decreases the number of African-American voters in one district while increasing the number of white voters, is it doing so to discriminate against African-American voters or simply to benefit the election of Republican candidates?

In McCrory, the plaintiffs challenged the new congressional districts as racial gerrymandering.  Specifically, the plaintiffs alleged too many African-American voters were packed into one district which diluted the voting rights of African-Americans in neighboring districts.  The plaintiffs also alleged a new congressional district should not have been drawn to constitute a majority-minority district.  The three-judge panel rejected the new districts, holding the North Carolina legislature, with a majority of Republicans, put too much emphasis on the racial percentages in drawing these two districts.

In Bethune-Hill, the plaintiffs challenged the creation of 12 majority-minority districts in the Virginia state legislature.  After these districts were drawn by the Virginia state legislature, the United States Department of Justice approved the Virginia congressional map.  However, the Plaintiffs argued the 12 districts were packed with African-American voters (each of the 12 districts had at least 55% African-American voters) which diluted voting power of African-American voters in adjoining districts. The Court by a 2-1 vote, upheld 11 of the districts ruling race did not play a dominant role in the creation of these districts.  In the remaining district, the court held race did play a predominant role in its creation but held this was allowed given the state’s justification it had to be drawn this way to comply with the Voting Rights Act.

Currently, there are a number of pending redistricting challenges across the United States.  Whether the Supreme Court will use these two cases to create a roadmap going forward remains to be seen.