"... the legislative maps for the Virginia House of Delegates, maps that are so gerrymandered that the commonwealth of Virginia only barely resembles a democratic state."

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Supreme Court To Consider What Happens When Race Discrimination Hides In Plain Sight
By Ian Millhiser, June 7, 2016

Racial gerrymandering cases are rarely easy for courts to decide. On the one hand, the Constitution requires courts to treat racial classifications in the law with extraordinary skepticism. On the other, laws such as the Voting Rights Act require states to pay attention to race when they draw legislative maps, and the Constitution gives them some leeway to do so. The Supreme Court’s opinions explaining how to walk the line between these two conflicting concerns are not a model of clarity.

On Monday, the Court announced that it would hear Bethune-Hill v. Virginia State Board of Elections, a case that could potentially bring more certainty to this muddled area of the law. In the process, it could dismantle one of the most aggressive gerrymanders in the country. Or, if the justices adopt the reasoning used by the lower court in this case, Bethune-Hill could take the law in a drastically different direction — potentially giving states a license to engage in racial gerrymandering so long as the state’s mapmakers are clever about how they do so.

Bethune-Hill concerns the legislative maps for the Virginia House of Delegates, maps that are so gerrymandered that the commonwealth of Virginia only barely resembles a democratic state. In 2013, Democrats swept the state’s elections for all three of the major statewide offices on the ballot — governor, lieutenant governor, and attorney general — but Republicans still won a 67 to 33 super-majority in the state house.

Current Supreme Court precedent makes it nearly impossible to challenge a partisan gerrymander in federal court, but racial gerrymanders are much more vulnerable to challenge. The plaintiffs in Bethune-Hill, moreover, are helped by the fact that Virginia lawmakers used a racial criteria when they drew twelve of the state’s house districts, requiring each of them to have a black voting-age population of at least 55 percent.

A common tactic used by mapmakers seeking to produce a gerrymandered map is "packing," where voters of a particular race or partisan affiliation are crammed into a small number of districts in order to minimize their impact on the state as a whole.

A majority of the three-judge lower court panel that heard Bethune-Hill, however, concluded that these plaintiffs should not prevail, in part because Virginia's maps weren't ugly enough to constitute a racial gerrymander. Past gerrymandering decisions establish that a map is more likely to be struck down if it was not drawn according to "traditional districting principles." That is, maps where the districts are compact, geographically contiguous, and that group established communities together will fare better in court than maps with misshapen districts that branch out throughout the state in an apparent effort to bring as many people of a certain racial group into the district as possible.

Judge Robert Payne's opinion for the panel majority, however, fetishizes these traditional criteria to the point that districts which appear to be compact and contiguous are more or less immunized from challenge. The law governing racial gerrymanders, he writes, "demands 'actual conflict between traditional redistricting criteria and race that leads to the subordination of the former, rather than a merely hypothetical conflict that per force results in the conclusion that the traditional criteria have been subordinated to race.'" If "racial considerations do not entail the compromise of neutral districting norms," he writes, "the basis for a racial sorting claim evaporates."

Thus, the challenge for racial gerrymanderers is clear. Draw a map that snakes along a highway, reaching out only to capture black neighborhoods along the way, and you are probably sunk. But draw a map that superficially resembles a legal map, and the law will treat it as if it is perfectly kosher.

In many states, that will not be a difficult challenge to meet. As Judge Barbara Milano Keenan writes in dissent, "the race of a voter often correlates with other districting considerations, including partisan preference, incumbency protection, and communities of interest." Thanks to America's long legacy of residential segregation, voters of a particular race often live in discrete communities that can be combined into packed districts relatively easily. And this is especially true in cities, where dense populations enable packed districts that are geographically compact.

Bethune-Hill is a complicated case -- the Supreme Court will consider five separate legal questions when it hears the case next term. The lower court's rule, however, would transform many future gerrymandering cases into something much more simple. As Judge Keenan writes, "visual inspection of a district would be fatal to an equal protection claim if the district's boundaries appear to be consistent with traditional criteria, irrespective of direct evidence that the line-drawing was racially motivated at the outset."

Mapmakers, in other words, would enjoy broad latitude to discriminate, just so long as they aren't too obvious about it.
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