RACIAL GERRYMANDERING

Virginia House of Delegates v. Bethune-Hill

Issues

Does a state legislature have standing to appeal a district court’s order to enact a remedial redistricting plan; and, does that state legislature violate the Equal Protection Clause when it uses race to draw legislative districts during the post-census redistricting process to comply with the Voting Rights Act?

The Virginia House of Delegates argues that it not only has the proper standing to appeal the district court’s decision rejecting its redistricting plan, but also that race did not impermissibly predominate in the redistricting process. But even if race did predominate, the House further contends that its redistricting plan satisfies strict scrutiny because it must consider race to comply with the Voting Rights Act of 1965. Bethune-Hill and other Virginia voters as well as Virginia Attorney General Mark Herring respond that the House does not have standing to appeal because it does not suffer a particularized and concrete injury. Furthermore, Bethune-Hill notes that even if the House has proper standing, race predominated in the redistricting process and the redistricting was not narrowly tailored enough to survive strict scrutiny. The outcome of this case has implications on future cases in which legislative bodies may wish to intervene, as well as on racial gerrymandering challenges.

Questions as Framed for the Court by the Parties

1. Whether the district court conducted a proper “holistic” analysis of the majority-minority Virginia House of Delegates districts under the prior decision in this case, Bethune-Hill v. Virginia State Board of Elections, even though it ignored a host of evidence, including the overwhelming majority of district lines, which were carried over unchanged from the prior map; the geographic location of population disparities, which imposed severe redistricting constraints and directly impacted which voters were moved into and out of the majority-minority districts; and the degree of constraint the House’s Voting Rights Act compliance goals imposed in implementation, which was minimal;

2. Whether the Bethune-Hill “predominance” test is satisfied merely by a lengthy description of ordinary Voting Rights Act compliance measures;

3. Whether the district court erred in relying on expert analysis it previously rejected as unreliable and irrelevant and expert analysis that lacked any objective or coherent methodology;

4. Whether the district court committed clear error in ignoring the entirety of the house’s evidentiary presentation under the guise of credibility determinations unsupported by the record and predicated on expert testimony that should not have been credited or even admitted;

5. Whether Virginia’s choice to draw 11 “safe” majority-minority districts of around or above 55 percent black voting-age population (“BVAP”) was narrowly tailored in light of the discretion the Voting Rights Act afforded covered jurisdictions to “choose to create a certain number of ‘safe’ districts, in which it is highly likely that minority voters will be able to elect the candidate of their choice,” under Georgia v. Ashcroft, or the requirement the Voting Rights Act, as amended, imposed on covered jurisdictions “to prove the absence of racially polarized voting” to justify BVAP reductions towards or below 50 percent BVAP;

6. Whether the district court erred in ignoring the district-specific evidence before the house in 2011 justifying safe districts at or above 55 percent BVAP; and

7. Whether appellants have standing to bring this appeal.

After receiving the 2010 census results data, the Virginia state legislature (“General Assembly”) redrew the state’s legislative districts. Golden Bethune-Hill v. Virginia State Board of Elections (“Bethune-Hill I”), 326 F. Supp. 3d 128, 137 (E.D. Va. 2018). This included all 100 Virginia House of Delegates (“House”) districts. Id. The new, redrawn districting plan would go into effect for the 2011 election cycle. Id.

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