This morning, the Supreme Court heard oral argument for the second time in a racial gerrymandering challenge to Virginia's 2011 House of Delegates district map in Virginia House of Delegates v. Bethune-Hill. Back in 2017, the Supreme Court upheld one of the challenged 12 districts and sent the remaining 11 back to the district court for further review after determining that the district court had applied the incorrect standard. On remand, the district court found that race had been the predominant factor in drawing the 11 districts and threw them out, and the House of Delegates appealed.
Much of today's argument focused on the standing of the House of Delegates to defend the map that they drew. Oddly, this had not been an issue during the previous hearing of the case when the House of Delegates similarly defended their map because Virginia's Democratic attorney general refused to do so.
Justice Brett Kavanaugh, who has not previously participated in a redistricting case at the Court, identified the heart of the problem in the confusing and sometimes contradictory legal standards for racial gerrymandering:
The justices spent less time on the merits of the racial-gerrymandering challenge, but they were equally divided when they did discuss it. Justice Brett Kavanaugh echoed the legislature’s argument that, when it drew the new map back in 2011, it was caught between a rock and a hard place. He told Marc Elias, who argued for the challengers, that the legislature would be “hammered” if it had aimed to have 52 percent, rather than 55 percent, of the voters in each district be African-American, because that number would be considered too low. How can the state comply with both the Voting Rights Act and the Constitution’s equal protection clause in this “narrow band between 51 and 55” percent? Kavanaugh queried.
Justice John Roberts pointed out another perennial problem in redistricting cases - courts' willingness to discredit the testimony of those who actually drew the maps in favor of experts hired by the challengers:
Roberts had an entirely separate concern, which he labeled the “elephant in the room”: the idea that the legal standard for determining whether race was a primary consideration in redistricting “depends heavily” on whether the trial court believes that witnesses are credible. In this case, Roberts noted, Delegate Chris Jones, who led the effort to draw the 2011 map, was regarded as credible at the first trial, but at the second trial – with a new judge – he was not regarded as credible, while expert witnesses were. If the case had come out the other way, Roberts emphasized, then the Supreme Court would have to defer to “questions of credibility that go the other way” instead. “Our review sort of depends on whoever gets here last,” Roberts concluded.
[Paul] Clement agreed, telling the chief justice that when determinations about a witness’s credibility are “diametrically opposed,” the district court should be required to explain the change. Indeed, he argued, when a court “has gone out of its way to say that it’s particularly important to credit the good faith of the legislatures engaged in a very difficult task” like redistricting, there should be a higher standard “before you dismiss their testimony across the board.”
Lawyers Democracy Fund, along with the American Legislative Exchange Council and State Government Leadership Foundation, filed an amicus brief in the case in support of the House of Delegates' standing to defend the map they drew (citations omitted):
“The task of redistricting is best left to state legislatures, elected by the people and as capable as the courts, if not more so, in balancing the myriad factors and traditions in legitimate districting policies.” As the body primarily responsible for the design of the redistricting plan governing its composition and the composition of its members’ constituents, including the balancing of myriad legal and political goals, the Virginia House of Delegates unquestionably has standing to defend its plan in accordance with the Court’s long-established precedent and practice in redistricting cases.
The House of Delegates is directly affected by the district court’s order invalidating its redistricting plan and ordering an alternative redistricting scheme to be designed by a California professor. Reaffirming Beens as stare decisis in this case serves important goals, including the continued practice of fair representation of all parties in redistricting litigation, and guarding against political maneuvering that frequently arises when the courts must become involved in redistricting. “[A]ny departure from the doctrine of stare decisis demands special justification.” The State Appellees in their Motion to Dismiss provide no such special justification for up-ending decades-long precedent and principles recognizing the vital role and interest of legislative bodies with regard to redistricting plans and standing to appeal, thus threatening long-established, standard procedure of legislative participation at all stages of redistricting litigation.
This was the first of several redistricting cases being heard by the Supreme Court this term. In other Supreme Court news, as requested by Solicitor General Noel Francisco, the Court decided on Friday to add the constitutional questions to the administrative law question already scheduled for oral argument on April 23 in Department of Commerce v. New York, the case over the inclusion of the citizenship question on the 2020 census. The RNLA will cover these cases as they are argued and decided here and on Twitter.