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Racial Gerrymander or Partisan Plan: SCOTUS to Decide

While most Supreme Court redistricting cases come up in the context of challenges to redistricting by state legislatures (this case being no exception) the same principles apply to redistricting at the local level.

When the Virginia legislature redrew congressional voting districts following the 2010 census it increased the number of minority voters in District 3, the state’s only majority-minority district, from 53.1 to 56.3 percent.

The plan was challenged before a three-judge federal district court in Virginia. Plaintiffs argued that the plan unconstitutionally packed minority voters into District 3 thus diluting their ability to influence races in other districts.

The lower court ruled that the plan was unconstitutional finding that race was the predominant consideration for the district, a violation of Supreme Court case law on redistricting. The court found that the architect of the legislation said repeatedly that District 3’s lines were drawn to avoid the weakening (retrogression) of minority’s opportunity to elect a candidate of their choice to comply with “non-negotiable” Section 5 of the Voting Rights Act (VRA).

A number of Virginia legislators appealed the ruling to the U.S. Supreme Court claiming that political considerations were also prominent in the crafting of the district.

In Wittman v. Personhuballah the Supreme Court will resolve this dispute unless it dismisses the case because none of the Virginia legislators reside in or represent District 3. 

A redistricting plan will amount to an unconstitutional racial gerrymander in violation of the Constitution’s Equal Protection Clause if the legislature’s predominant consideration in drawing electoral boundaries was race and the plan fails strict scrutiny; it isn’t narrowly tailored to advance a compelling state interest.

Per strict scrutiny, the lower court held that complying with the VRA is a compelling state interest. But increasing the minority population wasn’t narrowly tailored as District 3 is a “safe” minority-majority district. In 2010—before the redistricting plan—the current Congressman won reelection by 70 percent. 

The Virginia legislators’ appealed claiming Easley v. Cromartie (2001), requires plaintiffs to “show a conflict between race and traditional principles, including politics, that the legislature resolved by redistricting in a way that sacrificed traditional principles to race.” According to the legislators the lower court failed to require the plaintiffs to make such a showing. Regardless, plaintiffs could not show politics were sacrificed on account of race because the redistricting plan was a “’political gerrymander’ that maintained ‘a 8-3 partisan division’ in favor of Republicans and ‘protected all incumbents’”—even the plaintiff’s expert testified as much.  

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