The Supreme Court grappled with two redistricting cases Monday from Virginia and North Carolina, in which Democrats and civil rights advocates allege the state legislatures packed minorities into a handful of legislative districts to constrain their influence statewide.
The justices dedicated two hours to a discussion of allegations from each state, at times wading deep into the record and hashing out the finer points of the redistricting process.
Some states complain that they face something of a Catch-22 when they must redraw congressional and state legislative districts every 10 years. On the one hand, the courts forbid states from making race the predominate factor during the redistricting process. Conversely, the Voting Rights Act (VRA) requires states to consider race in redistricting if they have large minority populations.
What’s more, states can also face trouble no matter what solution they reach — if a state spreads minority voters out over several districts, they could be said to be diluting the influence of minority votes and the prospect of minority representation in legislative bodies. Should they establish minority-majority districts across the state, they’re accused of compacting minority populations into a handful of districts to reduce their influence in other jurisdictions.
In the Virginia case, a lower court upheld 12 state legislature districts, each of which had a Black Voting Age Population (BVAP) of at least 55 percent. Here the justices must decide how courts should determine if race was the “predominate” factor in the redistricting process. The lower court ruled that race predominates only if it conflicts with neutral redistricting criteria like contiguousness of borders. Marc Elias, a lawyer representing the civil rights groups challenging both laws, said the lower court invented this standard “out of whole cloth.” Elias also represents the presidential campaign of Hillary Clinton.
Elias seemed to elicit some sympathy from Justice Anthony Kennedy, whose vote will likely decide the outcome of the case. Though Kennedy sided with the conservative justices in Shelby County v. Holder, which struck down several provisions of the VRA, he sided with the liberal justices in a redistricting case from Alabama last year.
However, Justice Stephen Breyer indicated he had reservations about Elias’ arguments.
“This is such a complicated area that it’s the easiest thing in the world to go through a district court lengthy opinion and to find a sentence that’s not exactly right,” he said in reference to Elias’ argument about the standard the lower court applied. He also repeatedly asserted that the best way to scrutinize for a racial gerrymander was to analyze the number of minority voters who had been moved into or out of the districts in question. (RELATED: Judicial Vacancies Present Daunting Challenge For Trump)
Breyer also appeared frustrated that his opinion in 2015’s Alabama case had not sorted out the problems attending redistricting.
Paul Clement, a former Bush administration solicitor general who represented both states called the redistricting process a “bipartisan success story” and argued the lower court applied the correct standard. He also sparred with Justice Elena Kagan, who argued that the state legislature should not have applied a single BVAP figure for the entire state.
“It sort of defies belief you could pick a number and say that applies with respect to every majority-minority district,” she said.
In the North Carolina case, the Court is asked to decide whether the Constitution’s Equal Protection Clause allows a state to increase the percentage of minority voters in a district without violating the VRA. This case involves two congressional districts in North Carolina. Civil rights groups allege the state legislature packed minority voters into these districts to mitigate their power elsewhere.
A lower court ruled North Carolina relied too much on race in drawing the district maps and invalidated them.
The state argued that they did not rely predominantly on race, and that the civil rights groups should produce alternative maps of their own to demonstrate how districts could be drawn without offending the VRA or the Constitution. Breyer’s opinion in the Alabama case suggested that, in similar cases, groups who challenge redistricting maps should present their own alternatives. It was not clear that this challenge could be considered a “similar case” within the meaning of Breyer’s opinion.
North Carolina also argued the redistricting map was driven by political and not racial concerns
The challengers argued that the state relied too heavily on race. The case’s factual record is heavy on allegations from witnesses that race predominated during the redistricting process. They also argued that producing alternative maps was not essential to the outcome of the case. Elias argued that, in such cases, one should consider evidence as a “mosaic” and not a smoking gun.
Opinions in both cases are not expected before the end of the year.
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