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. This included all 100 Virginia House of Delegates (“House”) districts. The new, redrawn districting plan would go into effect for the 2011 election cycle. Delegate Steven Christopher Jones, the then-Chairman of the House Committee on Privileges and Elections, directed the redistricting efforts and was the chief patron of the bill setting forth the new, redrawn districts.
In 2011, Virginia was subject to Section 5 of the Voting Rights Act of 1965, which prohibited the redistricting process from “diminish[ing] the number of districts [compared to the prior plan] in which minority groups can elect their preferred candidates of choice.” To comply with the “non-retrogression” requirement, Delegate Jones determined that the twelve majority-minority districts from the prior decade’s legislative district plan would have at least a 55% Black voting age population (“BVAP”). That is, the districts would need to be drawn in a manner such that the voting age population in the twelve majority-minority districts would be at least 55% Black. Delegate Jones based his BVAP determination on House District 75 (“HD75”).
In 2014, Golden Bethune-Hill and eleven other Virginia voters (collectively “Bethune-Hill”) filed a civil action against the Virginia State Board of Elections, the Virginia Department of Elections, and election officers, alleging that the twelve majority-minority districts were racial gerrymanders in violation of the Equal Protection Clause of the Fourteenth Amendment. In a 2015 bench trial, the United States District Court for the Eastern District of Virginia concluded that, when drawing eleven of the twelve districts, the legislature did not predominantly rely on race considerations. Although the court found that HD75 had been drawn with race as its predominant concern, the court ultimately determined that the Virginia State Board of Elections’ use of race to draw that district was narrowly tailored as required under strict scrutiny. The Supreme Court, on appeal, reversed the lower court’s decision with instructions to apply a “holistic analysis” regarding whether the Virginia State Board of Elections predominantly relied on race in the eleven districts.
During the second trial, which was held in 2017, the district court examined new evidence and found that the legislature in fact did improperly rely on racial considerations, in part because the legislature applied a minimum 55% BVAP requirement to the eleven districts. The court concluded that the legislature moved voters to certain districts primarily on the basis of race over traditional districting criteria and thus failed to satisfy strict scrutiny. Subsequently, the court ordered the General Assembly to create a remedial redistricting plan.
The General Assembly did not enact a remedial plan, and so the district court appointed an expert to assist the court in redrawing the maps itself. In addition, Bethune-Hill and the other voters submitted two proposals, as did the Virginia House of Delegates as intervenors. Two interested non-parties—the Virginia State Conference of NAACP Branches and student groups from the College of William and Mary Marshall-Wythe School of Law—also submitted two proposals. The court’s expert considered all seven plans and submitted several alternatives to the court as well.
The court upon review adopted a Final Remedial Plan, which incorporated the expert’s report and encompassed all 100 districts in Virginia, and the court directed the state to use that plan in the 2019 Virginia House of Delegates elections. In contrast, the dissent asserted that the plaintiffs had in fact proven a violation of the Equal Protection Clause, and so the court did not need to change the original redistricting plan.
In 2018, the Virginia House of Delegates filed to appeal the lower court’s decision as appellant-intervenors. The Virginia State Board of Elections and others moved to dismiss the appeal on the grounds that the Virginia House of Delegates lacked standing to appeal.Bethune-Hill also moved to dismiss the appeal because the lower court’s holistic analysis of the legislature’s use of race considerations was done correctly.
In December 2018, the Virginia House of Delegates applied for a stay pending the appeal to preserve the original redistricting plan. The Court denied the stay in January 2019 and set the case for argument, to be heard on March 18, 2019.
STANDING TO APPEAL
The Virginia House of Delegates (“House”) asserts that it has standing to bring this appeal. The House contends that it not only has a “personal stake in the outcome” of the case, but it also suffers a distinct injury from the lower court invalidating the redistricting map it drew. The invalidation inflicts a particularized and concrete injury, according to the House, because the court usurps the House’s redistricting authority and forces the House’s members to run for reelection in the new, court-drawn districts while simultaneously representing their current district. The House compares this case to Sixty-Seventh Minnesota State Senate v. Beens, where the Supreme Court held that the Minnesota State Senate had standing to appeal after it intervened as a defendant in district reapportionment litigation, and argues for a similar outcome. Additionally, the House notes that Bethune-Hill, Virginia Attorney General Mark Herring, and the district court all failed to object to the House’s intervention in the original suit. The House continues that it has participated in and overseen all aspects of the litigation without objection from any party until this appeal. Although the House concedes that state attorneys general usually retain the ability to appeal such cases, the House rejects the notion that Attorney General Herring “alone has a monopoly over whether to appeal a decision.” And pursuant to the Karcher v. May Supreme Court decision and Virginia courts’ decisions, the House claims that state law authorizes it to “represent the State’s interest in redistricting litigation” when Attorney General Herring declined to do so.
Bethune-Hill as well as Virginia Attorney General Mark Herring and State appellees respond that the Virginia House of Delegates lacks standing to pursue this appeal because the institution itself does not suffer a legally cognizable injury. Bethune-Hill contends that the House conflates its intervention under Federal Rules of Civil Procedure Rule 24 in the litigation with its standing under Article III of the Constitution. While the former requires only an interest in the litigation, the latter requires a concrete and particularized injury—which Bethune-Hill asserts does not exist. Bethune-Hill further maintains that the House’s “divided constituencies” theory of injury does not pass constitutional muster because that outcome happens after every decennial census, and the injury would apply to the individual delegates rather than the institution as a whole. Bethune-Hill similarly rejects the House’s “redistricting authority usurp[ation]” theory of injury because courts routinely strike down unlawful statutes and must draw the remedial map if the legislative body fails to do so. The House’s reliance on Beens is similarly unavailing, according to Bethune-Hill, because that case considered standing in the context of reducing the number of state senators rather than merely redrawing their districts. Additionally, Herring notes that Virginia law grants him alone, in his capacity as Attorney General, with the authority to defend challenged state laws and appeal when they are invalidated. . Herring concludes by noting that the Supreme Court has consistently held that the federal government must “speak with one voice,” and asserts that the same principle applies to the state governments.
THE PREDOMINANCE ANALYSIS AND THE USE OF RACE IN REDISTRICTING
The Virginia House of Delegates argues that Bethune-Hill and the other appellees did not satisfy their burden of proving that race predominated the drawing of the challenged districts. That is, the House contends, Bethune-Hill cannot demonstrate that lawmakers’ “dominant and controlling rationale” was “race for its own sake and not other districting principles” when it redrew the twelve majority-minority districts. Although Delegate Jones considered race in the redistricting process to comply with Section 5 of the Voting Rights Act of 1965 (“VRA”), the House maintains that Delegate Jones adhered to traditional redistricting principles and that race served as one factor among many in the lawmakers’ holistic approach. Furthermore, the House asserts that evidentiary record—including “the face of the plan” itself—shows that the 55% BVAP did not dominate or control the redistricting process because none of the districts violated the state’s adopted criteria. The House also notes that Delegate Jones only minimally changed the challenged districts from the previous map and that the individual districts retained their cores and significant proportions of their prior constituencies. Finally, the House posits that the district court erred by disregarding relevant evidence of race neutrality, dismissing the House’s witnesses as not credible, and baselessly rejecting Delegate Jones’s explanations for altering geography or constituencies from the previous map.
In response, Bethune-Hill argues that even if the House has standing to appeal the district court’s decision, the district court did not err in determining that race predominated the drawing of the challenged districts. The district court, according to Bethune-Hill, reached this conclusion by simply applying the Supreme Court’s recent redistricting and gerrymandering decisions and conducting a highly fact-specific analysis based on the evidence and testimony at trial. In particular, Bethune-Hill asserts that although using a BVAP requirement when drawing a district does not by itself suggest that race predominated, Delegate Jones’s inflexible application of a 55% BVAP floor for all twelve challenged districts suggests that he deviated from traditional districting criteria. Bethune-Hill points to instances of “stark racial sorting” by Delegate Jones to meet the strict 55% BVAP floor, which included dividing a military base along racial lines into two separate districts. Furthermore, Bethune-Hill maintains that Delegate Jones redistricted black voters into the challenged districts at higher rates than other voters. And even though the challenged districts “did not uniformly converge on 55%,” Bethune-Hill argues, Delegate Jones’s use of a racial target without compromise strongly suggests that race predominated. Bethune-Hill also contends that district core and constituency retention do not inoculate racial predominance; in fact, the district that the Supreme Court struck down two terms ago retained more of its core than nearly every other challenged district. Finally, Bethune-Hill concludes that the House’s disagreement with the district court’s weighing of the evidence, credibility assessments, and dissatisfaction with the law do not constitute legal error in assessing predominance.
APPLYING STRICT SCRUTINY TO THE CHALLENGED LEGISLATIVE DISTRICTS
The Virginia House of Delegates argues that even if race predominated the drawing of the challenged districts, the challenged districts still satisfy strict scrutiny. The Supreme Court, according to the House, has consistently recognized that complying with the VRA and avoiding retrogression under Section 5 satisfies the compelling interest prong of the strict scrutiny analysis. Concerning the narrow tailoring prong of the strict scrutiny analysis, the House asserts that lawmakers need show only that they had “good reasons” for using racial considerations in their effort to comply with the VRA. The House contends that lawmakers utilized the 55% BVAP target to avoid retrogression in the twelve minority-majority districts while also accounting for population changes and adhering to traditional districting criteria. The House posits that Delegate Jones settled on the 55% BVAP target only after conducting a functional analysis by considering the available data and consulting with the incumbent delegates representing majority-minority districts—one of whom suggested that the BVAP needed to exceed 50%. The Supreme Court, the House maintains, approved of this kind of approach when it considered one of the districts two terms ago and ultimately concluded that lawmakers need not determine the precise percentage required by the VRA. Demanding that lawmakers calculate surgically precise BVAP targets, the House concludes, “ask[s] too much” of lawmakers who use race in good faith to comply with the “onerous demands” of the VRA.
Bethune-Hill responds that the district court did not err in determining that the design process of the challenged districts failed the strict scrutiny analysis. Bethune-Hill concedes that there is a compelling state interest in complying with Section 5 of the VRA, but asserts that the design process was not narrowly tailored. Delegate Jones, Bethune-Hill contends, devised the 55% BVAP floor by considering only one of the twelve challenged districts. Bethune-Hill argues that Delegate Jones’s subsequent strict adherence to that 55% BVAP floor in every challenged district without considering each of the individual challenged districts reveals a clear lack of narrow tailoring. Indeed, according to Bethune-Hill, this one-size-fits-all approach demonstrates that Delegate Jones and the House can establish neither a “strong basis in evidence in support of the race-based choice” nor that they “conduct[ed] a meaningful legislative inquiry.” Therefore, Bethune-Hill claims, the House cannot show that the district court committed clear error in finding that the district design process, based in the unique conditions of a single district, was not narrowly tailored. Bethune-Hill adds that the House’s “excuses” for its failure to narrowly tailor the process—including time constrains, lack of relevant data, and difficulty in complying with the VRA—are incorrect, unavailing, or both. Finally, Bethune-Hill concludes that requiring lawmakers to have a “good reason to believe its use of race was justified” and to develop a corresponding evidentiary foundation does not “ask too much” of lawmakers.
INTERESTS OF STATE LEGISLATORS IN RECEIVING STANDING
A group of state and federal legislators from Michigan and North Carolina writing in support of the Virginia House of Delegates contend that intervening legislators have Article III standing to appeal such cases because legislators have unique interests at stake. Federal and state representatives, the Michigan and North Carolina legislators assert, are mandated by state and federal constitutions to participate in redistricting. Consequently, the legislators argue, representatives must necessarily be a part of any remedies or cases stemming from redistricting; therefore, they must receive standing. Similarly, the Criminal Justice Legal Foundation, in support of the Virginia House of Delegates, argues that legislators should have Article III standing under a doctrine of broad standing because legislators have a specific institutional interest in challenging orders that affect their obligations to their constituents.
The United States, in support of neither party, claims that the House in fact lacks standing to appeal the lower court’s decision because the House has not demonstrated that it represents the state of Virginia’s interests, nor has it demonstrated a cognizable institutional interest in defending the district lines. The United States claims that, although government officials may represent their state’s interests, Virginia’s law does not state that a legislator can represent the state. Although state courts have allowed the House to intervene in state law issues, the United States acknowledges, this does not mean that the House can represent Virginia itself. Moreover, the United States argues, a state legislature that enacts a law—in contrast to enforcing a law—does not have an institutional interest. If the Court were to allow standing, the United States contends, state and federal legislators would be able to bring all kinds of lawsuits. This would potentially increase the amount of litigation in the courts, as well as allow a legislative body to sue whenever it believed its powers were being diluted.
RACIAL CONSIDERATIONS AND REDISTRICTING PLANS
The Virginia House of Delegates asserts that their two-part test—for when race-conscious districting is subject to and satisfies strict scrutiny—ensures that legislatures are allowed to consider race when they need to balance competing liabilities under the Equal Protection Clause and Section 5 of the Voting Rights Act. Permitting the narrowly tailored consideration of race, the House contends, allows legislatures to avoid placing too many or two few minority voters in a district and thus to comply with requirements under both the Equal Protection Clause and the Voting Rights Act.
In contrast, the United States alleges that the lower court did not thoroughly analyze whether racial predominance was used in every district; rather, the lower court extrapolated its finding of race-based motives for certain boundaries without considering the presence of other motivations for district drawing. The Lawyers’ Committee for Civil Rights Under Law (“Lawyers’ Committee”), in support of Bethune-Hill, agrees that merely considering race in a redistricting plan does not trigger strict scrutiny. However, the Lawyers’ Committee asserts that strict scrutiny ought to be applied here because there is ample evidence that Virginia’s legislature illegitimately prioritized racial considerations over traditional districting principles when drawing the challenged districts. The Lawyers’ Committee states that expert testimony, as well as the fact that the challenged districts used non-contiguous shapes and divided certain neighborhoods, prove that racial gerrymandering took place.
- Alex Lemieux, Federal Court Ruling Alters Virginia House of Delegates Map Ahead of 2019 Elections, Republican Standard (Feb. 15, 2019).
- U.S. Supreme Court Agrees to Hear Appeal in Virginia House of Delegates Redistricting Case, WTKR (Nov. 13, 2018).
- Gregory S. Schneider & Robert Barnes, U.S. Supreme Court to Take Up Virginia Redistricting Case on Racial Gerrymandering, Washington Post (Nov. 13, 2018).