Yesterday, in Bethune-Hill and McCrory, counsel for the voter-plaintiffs asked the Supreme Court to reverse the Virginia decision and affirm the North Carolina decision. The state-defendants requested the opposite. Based on the Justices’ questions, the plaintiffs appear poised to get what they want. Yet, a full-out victory for either side should concern all of us—including the plaintiffs. That is because counsel for the voter-plaintiffs may have just purchased a few state house seats at the cost of the Voting Rights Act itself.

The arguments yesterday were marked by confusion, with the underlying tension between the commands of the Voting Rights Act and the Equal Protection Clause coming up on several occasions. Indeed, at one point, counsel for the state-defendants went so far as to raise the issue directly, prompting a quick response from Justice Kagan:

CLEMENT: [T]he Voting Rights Act makes the consideration of race absolutely necessary. . . . [U]nless you want to take the first steps towards declaring the Voting Rights Act unconstitutional, you don’t want to send the signal that when legislatures approach this in a way that I think is perfectly appropriate to what’s going on. . . .

JUSTICE KAGAN: You absolutely don’t, Mr. Clement.

Unfortunately, this problem cannot be so easily ignored when the Justices are forced to put pen to paper. They are the ones who must harmonize the racial sorting claim with the commands of the Voting Rights Act, and for the time being they seem to be at a loss. As Justice Breyer tellingly noted towards the end of the arguments:

JUSTICE BREYER: But, . . .what exactly is going on, in part, is a very tough matter. . . . There were many States that had many black citizens and had no black representation, and there was a [decision to] have majority-minority districts. And the problem is, how does the law permit the creation of that, and at the same time, prevent the kind of packing that might appear in other cases, which is gerrymandering? And . . . no one, I think, has a good answer to that question. There is just slightly better, slightly worse.

But there is a good answer to that question, and there is a way forward. Unfortunately, it wasn’t offered by either side and requires rejecting both sets of arguments in part. For the reasons stated below, the Court should reject the plaintiffs’ view of predominance in Bethune-Hill, reject the states’ justifications for gerrymandering in McCrory, and affirm the results in both cases. The Voting Rights Act depends on it, the Constitution demands it, and our democracy requires it.

Disclosure: I served as a law clerk to the author of Bethune-Hill, Judge Robert E. Payne. I do not represent any parties in this case and the views below are my own.

The Likely (but Wrong) Path Forward

Based on oral argument, the Court seems to think it has an answer to the predominance question: rather than interpreting “predominance” to focus on the use of racial percentage targets, “predominance” should focus on the use of racial population shifts. This mirrors the Government’s view and seems, at first, to make some sense. After all, the plaintiffs argue, the Miller standard looks at the “motivation” for placing voters “within or without” a particular district. The likely result of this holding would be to remand Bethune-Hill and affirm McCrory.

Unfortunately, focusing on “population shifts” rather than “percentage targets” is both incoherent and unhelpful if a clash between the Fourteenth Amendment and the Voting Rights Acts is to be avoided.

Such a rule is incoherent for one simple reason: How, exactly, does one increase (or decrease) the black voting age population percentage in a district to a level sufficient (but not intentionally greater than necessary) to protect ability to elect under the VRA without increasing (or decreasing) the black voting age population in that district? It is impossible to accept that tailored BVAP floors may be necessary to prevent vote dilution and protect ability-to-elect but to outlaw the only method by which those floors can be met.

More importantly, the rule does nothing to avoid the inherent tension at the heart of these cases: the dangerously broad reading of Miller advanced by the voter-plaintiffs. According to the plaintiffs, the state’s use of race in districting triggers predominance when a district is formed “because of race.” This “because of” understanding was captured perfectly in a question posed by Justice Kennedy:

JUSTICE KENNEDY: Suppose you have . . . two possible districts. Each of them look conventional. Each of them are conventional in the same sense that you’ve been describing these multiple factors. But the stated reason, the stipulated reason for choosing District A over District B is because it has more voters of a certain race, black, Latino, white, whatever. Is that a predominant motive based on race?

CLEMENT: I would say that the right answer to that . . . is no[.]

JUSTICE KENNEDY: [T]hat’s what the district court says, and I have . . . problems with that, because predominance is designed to measure intent when there are multiple causes, and in . . . the hypothetical . . . the . . . tipping point, the principal motivating factor was race.

But if this “because of” standard for predominance sounds familiar, that’s because it is: it is identical to Justice Thomas’ reading of Miller and interpretation of the predominance standard. As Justice Thomas wrote in his concurring opinion in Bush v. Vera:

“In my view, [the intentional creation of a 50%+ BVAP district] means that the legislature affirmatively undertakes to create a majority-minority district that would not have existed but for the express use of racial classifications—in other words, that a majority-minority district is created “because of,” and not merely “in spite of,” racial demographics. When that occurs, traditional race-neutral districting principles are necessarily subordinated (and race necessarily predominates), and the legislature has classified persons on the basis of race. The resulting redistricting must be viewed as a racial gerrymander.”

In that same case, Justice Kennedy had preserved the question that Miller left open by declining to join the plurality opinion or Justice Thomas’ opinion.  Instead, he wrote his own opinion:

“I join the plurality opinion, but the statements in . . . the opinion that strict scrutiny would not apply to all cases of intentional creation of majority-minority districts require comment. I do not consider these dicta to commit me to any position on the question whether race is predominant whenever a State, in redistricting, foreordains that one race be the majority in a certain number of districts or in a certain part of the State.”

The question remained open in Alabama:

Finally, we note that our discussion in this section is limited to correcting the District Court’s misapplication of the “predominance” test for strict scrutiny discussed in Miller. It does not express a view on the question of whether the intentional use of race in redistricting, even in the absence of proof that traditional  districting principles were subordinated to race, triggers strict scrutiny. See Vera , 517 U. S., at 996 (KENNEDY, J., concurring).

The district court in Bethune finally answered that question: the intentional use of race in redistricting alone does not trigger strict scrutiny and traditional districting principles must in fact be subordinated to race in order to find race predominant.  The actual-conflict interpretation is not a new standard; it is a narrowing standard—the reading of Miller one must apply in order to answer the question held open in Alabama.

And here is why Justice Kennedy’s hypothetical (and his “problem” with the actual-conflict interpretation of predominance) is a problem for the Voting Rights Act: this “foreordaining” and “intentional use of race in redistricting” is exactly what the Voting Rights Act requires.  When a district is intentionally created to protect ability to elect, it is inherently created “because of” race.  Whether one focuses on percentage floors, population shifts, or prioritization of districting criteria, this ultimate tension remains.

This tension is why the voters’ legal strategy in this case is so dangerous. The plaintiffs’ decision to adopt Justice Thomas’ reading of Miller and interpretation of predominance may win them a handful of state legislative seats, but the long-term consequences could be severe. Not only does their legal theory risk gutting the Voting Rights Act as applied to redistricting, but the collateral damage might not stop there.

After all, with new appointments at the Department of Justice and the Supreme Court on the way, does anyone really think this colorblind logic will stay confined to redistricting cases? Or is it possible that Bethune-Hill will come to stand for the proposition that all laws presumptively violate the Equal Protection Clause—and are subjected to strict scrutiny—when they are passed “because of race.” This broader reading of Miller, where “racial purpose” alone can violate equal protection, is a constitutional landmine. If such a standard spreads to other types of cases, racial justice activists can expect to see virtually every legislative effort stall for at least a generation.

This is not what the Constitution—or Miller—requires.

The Unlikely (but Right) Path Forward

In fact, the parties—and the Justices—seem to have overlooked that the Constitution demands an actual-conflict reading of predominance.  Justice Kennedy’s hypothetical (and reservations about “foreordaining”) fail to account for the explicit enforcement power granted to Congress by Section 2 of the Fifteenth Amendment.  This gives the VRA’s commands constitutional cover.  In other words, the Fourteenth Amendment’s equal protection clause cannot be read to prohibit the legislature from intentionally crafting a district “because of” race without conflicting with the Fifteenth Amendment’s express protection of the legislature’s authority to intentionally craft districts in a way that protects minority ability to elect against dilution.

How can the Supreme Court harmonize the Fourteenth and Fifteenth Amendment?  As I noted a few weeks ago, the Supreme Court has a “third option” available: affirm both cases.

Bethune-Hill

The Supreme Court should reject the plaintiffs’ interpretation of predominance and affirm Bethune-Hill. By doing so, the Supreme Court would adopt a narrower reading of Miller and a more reasonable interpretation of predominance: that offered by Justice O’Connor.

In her concurring opinion in Miller, Justice O’Connor put an important qualification in place to limit the scope of the racial sorting claim; namely, that the district must exhibit “substantial disregard of customary and traditional districting practices” in order to trigger strict scrutiny. Paul Clement, arguing for the state-defendants, picked up on this point: “[W]hen this Court says ‘predominance,’ I assume they mean predominant over something else. And I think the ‘something else’ is traditional districting principles.” In order to “predominate,” racial considerations must subordinate traditional, neutral districting criteria in fact, not just in theory.

Under such a reading, percentage floors, population shifts, and prioritization of criteria are all evidence of racial predominance, but do not inherently constitute racial predominance. Rather than reading Miller‘s intent element to ask whether legislators rejected alternative plans because of race, the Bethune court—like Justice O’Connor—reads Miller‘s intent requirement to ask why the state deviated from (i.e., subordinated) traditional, neutral criteria in the actual, enacted plan.

Echoing Bethune’s “step-test” approach to examining predominance, the Lawyers’ Committee for Civil Rights puts this narrower intent formulation nicely in their McCrory brief:

“Evidence that traditional districting principles were subordinated is drawn first from an objective review of the challenged district’s shape, compactness, contiguity, and demographic makeup. Courts may further [i.e., second] consider evidence of legislative purpose, such as statements in the legislative record and post hoc testimony, in order to assess the extent to which the disregard for traditional districting principles is causally related to racial considerations.”

Counsel for the plaintiffs takes issue with this formulation, caricaturing the first step as a test of whether the district is “visually appealing” enough. Of course, if this were truly Bethune’s first step, the case would warrant outright reversal. But it isn’t.

The first step in the Bethune inquiry is not neatness, but rather neutrality. The first step examines the extent to which the district complies with neutral districting principles, such as compactness, contiguity, respect for political subdivisions or geographic features, nesting, and avoiding splitting precincts. In some cases, neutral principles (such as compactness) may make the district more “visually appealing,” but in other cases neutral principles (such as county boundaries, river boundaries, or nesting requirements) may result in “ugly” or “weird” districts.  Whether a district is “visually appealing” is irrelevant to the neutrality inquiry.

Why is neutrality an important first step in evaluating the viability of an equal protection claim? The answer seems almost too obvious to mention: if voters are sorted into districts based predominantly on neutral districting criteria, then they by definition are not sorted into districts based predominantly on racial districting criteria. The only way to find otherwise is to adopt Justice Thomas’ view that predominance is triggered when a district is formed “because of” race. The reason the Bethune court lets race be the deciding factor between two equally reasonable districts (as in Justice Kennedy’s hypothetical) is because the VRA demands that race be the deciding factor between two equally reasonable districts.

Now, the plaintiffs and others have argued that this case should be simple: they allege that the state purposefully packed minority voters into fewer districts in order to dilute their voting power. Such a practice is unconstitutional, and so they argue that the decision must be reversed.

They are right that packing is unconstitutional, but they are wrong that the decision here should be reversed. And this gets us to the crux of the matter: there are legitimate purposes for considering race in redistricting (such as preventing vote dilution, as required by the VRA) and illegitimate purposes for considering race in redistricting (such as committing vote dilution through packing, as alleged by the plaintiffs). As Justice Kagan noted:

“It’s one thing for a legislature to say, we view it as a core priority up there with one-person, one-vote to comply with the Voting Rights Act. That’s a terrific thing. It’s another thing for the legislature . . . to do something that just on its face you know is not required by the Voting Rights Act, that’s a problem.”

But when the state intentionally commits vote dilution—as it does when it “do[es] something that just on its face you know is not required by the Voting Rights Act”—the normal response would be to bring a racial vote dilution claim. A racial vote dilution claim asks whether the state has purposefully diluted minority voting power—the exact, unconstitutional practice alleged here.

In this case, the plaintiffs did not bring a racial vote dilution claim. Instead, the plaintiffs brought a racial sorting claim and have argued it so broadly that all districts formed “because of race”—for legitimate and illegitimate purposes—would be presumptively unconstitutional. Allowing the plaintiffs to prevail on a sorting claim in this case would render the very mechanism by which the VRA operates presumptively unconstitutional. None of this is to say that a voter in Virginia could not bring a vote dilution claim and win; it’s just to say that these voters didn’t bring that claim in this case.

The tragic irony is that the racial sorting claim first arose as a conservative challenge to districts created by the VRA, with litigators arguing that the Equal Protection Clause should act as a “check” on compliance efforts that went too far. Over time, the claim came into favor with liberal litigators, who realized that they could effectively challenge vote dilution practices without having to meet the burdens of proof required by a vote dilution claim. Unfortunately, the claim now appears to be coming full circle and threatening the existence of the VRA itself.

If the Supreme Court is going to avoid this, it must provide some daylight between what triggers strict scrutiny (the predominance test) and what survives strict scrutiny (the narrow tailoring test). Otherwise, every application of the VRA will be presumptively unconstitutional. An “actual conflict” reading of Miller provides just enough of a conceptual gap for this light to shine through, for the VRA to survive, and for sorting claims and dilution claims to coexist.

McCrory

Voters need not go home empty handed: the Supreme Court should also affirm McCrory and reject the state’s proposed justifications for drafting two districts that radically departed from traditional, neutral districting principles.

For one district, the state argues that race predominated, but that Section 2 of the VRA required them to subordinate neutral principles in order to include 50%+ BVAP in the district. As the district court rightly pointed out, the VRA requires no such thing. The VRA requires, in certain circumstances, that the state include sufficient BVAP to protect minority voters’ equal opportunity to elect the representative of their choice. This BVAP level can vary significantly depending upon how racially polarized voting in the region is. Where white voters “cross over” and vote with minority voters in sufficient numbers, an equal ability to elect may be maintained even with BVAP levels well below 50%. What is “reasonably necessary” in such cases requires a functional, factual analysis into actual voting patterns and dynamics in the region. In McCrory, the state conducted no such analysis. Instead the state simply packed minority voters into the district until the mechanical 50%+ threshold had been achieved. Such a practice cannot be justified by the actual requirements of Section 2, and, in this case, it is the defendant’s interpretation that poses the threat to the VRA.

For the other district, the state argues that politics, not race, was the predominant factor driving the district boundaries, and that the state drew its districts in order to achieve a 10-3 Republican partisan advantage in the state’s congressional delegation. Defendants have often turned to this defense in recent years to defeat racial sorting claims. Yet, even if the Supreme Court were to credit the defendants’ factual arguments here (and it shouldn’t), the Court should still affirm. As I have written, the state should not be permitted to sort voters based predominantly on their political affiliation for the purpose of partisan advantage, or to offer this purpose as a defense in a racial sorting claim. Unfortunately, the plaintiffs never challenged this defense at trial and never raised the issue at oral argument.

As the Bethune decision points out (and I have noted before), there is a difference between “traditional, neutral criteria” and “traditional, race-neutral criteria.” Politics and incumbency may be weighed against race at step two of the Bethune framework, but that does not make them “neutral” criteria under step one of the Bethune framework. Indeed, Judge Payne—the author of Bethune-Hill—expressed his views on this question quite clearly in a concurrence in Personhuballah:

“Neither . . . in [Personhuballah] nor in Bethune–Hill did the Plaintiffs contend that gerrymandering for political purposes was unconstitutional. . . . Now, however, the Intervenors have said that, in fashioning a remedy, this Court is obligated to maintain the 8-3 partisan split in [Virginia’s] Enacted Plan. To decide that contention, the Court necessarily must confront whether to effect a political gerrymander. In my view, a district court cannot do that . . . . [T]here is a strong argument that gerrymandering purely for the purpose of achieving or maintaining partisan advantage is unconstitutional . . . . Why that is so is thoroughly explained in Clearing the Political Thicket.”

Affirming on these grounds would also allow the Supreme Court to dodge a thorny procedural issue raised at oral argument: the fact that the North Carolina Supreme Court and the U.S. District Court came to two different factual conclusions about whether politics or race predominated in drawing the two districts. If partisan advantage is not a legitimate state interest and “defensive compliance” (rather than “actual compliance”) with Section 2 is not a compelling state interest, then it doesn’t matter whether the districting was predominantly racial or political. Either way, the state would have failed to put forth a sufficient justification for its districting decisions.

Next Steps on the Path Forward

By the end of oral argument yesterday, the only thing the Justices could seemingly agree upon was that the issues were complex and that there was no “good answer” available: “just slightly better, slightly worse.”

The Supreme Court may believe that there is no correct path forward to resolve the many competing principles at play in this case, but that would be wrong. The proper path is between the parties. The Court should reject the voter-plaintiffs’ recklessly broad interpretation of predominance, reject the state-defendants’ offensively essentialist interpretation of Section 2, and reject the defense of “partisan advantage” in racial sorting cases. By affirming both cases, the Supreme Court can harmonize the sorting claim with the dilution claim, the Equal Protection Clause with the Voting Rights Act, the Fourteenth Amendment with the Fifteenth Amendment, and racial gerrymandering law with political gerrymandering law.