On March 1, 2017, the United States Supreme Court decided Bethune-Hill v. Virginia State Board of Elections, No. 15-680, holding that parties may show race was a predominate factor in redistricting either through circumstantial evidence of a district’s shape and demographics, or more direct evidence going to legislative purpose, and that race may predominate even when a plan respects traditional principles.
After the 2010 census, some redistricting was required for the Virginia House of Delegates. It is undisputed that the boundary lines for the 12 districts at issue were drawn with the goal of ensuring that each district would have a black voting-age population of at least 55 percent. Voters challenged the new districts as unconstitutional racial gerrymanders. A three-judge panel from the United States District Court for the Eastern District of Virginia rejected the challenges, finding that as to 11 districts, the voters had not shown that “race was the predominate factor motivating the legislature’s decision to place a significant number of voters within or without a particular district.” The District Court held that race does not predominate unless there is “an actual conflict between traditional redistricting criteria and race that leads to the subordination of the former.” The District Court found that the remaining district was narrowly tailored to achieve a compelling interest.
The Supreme Court vacated and remanded as to 11 of the 12 districts, holding that the District Court applied the incorrect standard in two ways. First, the District Court erred when it required the challengers to establish an actual conflict between race and traditional redistricting principles. Instead, parties may show predominance either through circumstantial evidence of a district’s shape and demographics, or more direct evidence going to legislative purpose, and that race may predominate even when a plan respects traditional principles. The Court held that the proper inquiry concerns the actual considerations that provided the essential basis for the lines drawn, not post hoc justifications that the legislature could have used, but did not actually use.
Secondly, the Court found that the District Court erred in considering the legislature’s racial motive only to the extent the challengers identified deviations from traditional redistricting criteria attributable to race and not to some other factor. The Court held that a holistic analysis is necessary to give proper weight to districtwide evidence.
Because the Court determined that the District Court was best positioned to decide on remand the extent to which race directed the shape of the 11 districts, the Court vacated and remanded. As to the 12th district, the Court found that the State succeeded in demonstrating that its districting legislation was narrowly tailored to achieve a compelling interest—complying with the Voting Rights Act—because the State had good reasons to believe its use of race was needed in order to satisfy the Voting Rights Act.
Justice Kennedy delivered the opinion of the Court, in which Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, and Kagan joined. Justice Alito filed an opinion concurring in part and concurring in the judgment. Justice Thomas filed an opinion concurring in the judgment in part and dissenting in part.