Was Virginia’s clearly racist gerrymandering unconstitutional?

How Racist Must Racial Gerrymandering Be Before It Violates the Constitution?

How Racist Must Racial Gerrymandering Be Before It Violates the Constitution?

Oral argument from the court.
March 22 2016 11:36 AM

Blocked Voting

Was Virginia’s clearly racist gerrymandering unconstitutional?

U.S. Supreme Court.

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The Supreme Court feels eerily off-kilter on Monday morning as the justices take their new spots on the bench. As is custom, everybody has switched seats now that Justice Antonin Scalia’s chair is gone—but the remaining chairs are unevenly spaced out, leaving poor Justices Stephen Breyer and Sonia Sotomayor weirdly far away from their colleagues, as though they have been exiled from the club. At one point, a confused attorney searches for Sotomayor in her old spot and briefly panics when he doesn’t see her. (“I’m over here, counsel,” she offers helpfully.) At another, Justice Samuel Alito swivels instinctively to his right to flag a marshal’s aide, only to stare directly at Justice Elena Kagan’s face, just a few inches away. Everybody is a little bit flustered; it feels as though the courtroom’s chi has been interrupted.

Mark Joseph Stern Mark Joseph Stern

Mark Joseph Stern is a writer for Slate. He covers the law and LGBTQ issues.

The seating switcheroo serves as a nice metaphor for Monday’s major case, Wittman v. Personhuballah. Wittman centers around a congressional district in Virginia that has historically been majority-minority. In 2012, Republican legislators redrew the district in a manner that packed in even more black voters—arguably reducing their voting power in other districts. A handful of voters sued, and a three-judge district court ruled that the new district was an unconstitutional racial gerrymander. The court appointed an independent “special master” to redraw the district on nonracial grounds.

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Here’s where my bad chair metaphor comes in: Just as Scalia’s absence forced a rearrangement of other chairs, the redrawing of one district inevitably affected several others. Specifically, the court-mandated map shuffled new Democratic voters into Republican Rep. J. Randy Forbes’ formerly red district. With refreshing honesty about his profound devotion to retaining power, Forbes abandoned his old district and will run in a safer one this year. In Wittman, Forbes has assumed the role of defending the old map and assailing the new one. The question of whether a legislator really has the standing to attack redistricting to defend his incumbency is a novel and unorthodox constitutional issue in its own right, one the court will decide for the first time.

But more centrally, Wittman is the latest chapter in a long-running debate about voting rights and racial redistricting. The Voting Rights Act actually requires states to consider race when redistricting. Specifically, states must construct congressional districts in a way that doesn’t negate minority voters’ abilities to elect their preferred candidates. But they cannot do so by using quotas or percentages, and race cannot be the “overriding, predominant force” in redistricting, because, under the 1995 ruling Miller v. Johnson, that would violate the Equal Protection Clause. This goes the other way—the unconstitutional districts in Miller were drawn to help minority voters, but race also cannot be the predominant factor for redistricting that might hurt minority voters.

For challengers of the redrawn Virginia district, the game is to prove that the Virginia legislature did not draw its original map by shoving more black voters into a black-majority district simply because they were black. Unsurprisingly, the challengers chose Michael Carvin—a rude, rambling libertarian who peppers his arguments with Donald Trump–esque vitriol—to dispute the existence of a racial gerrymander.

Carvin does not fare better on Monday than he did when attacking the Affordable Care Act during oral arguments in 2015’s King v. Burwell in a performance that included so much talking over the female justices that Sotomayor finally encouraged him to “take a breath.” (His interruptions are at least gender-neutral this time around; by my count, he ignored Chief Justice John Roberts as many times as he powered past the women.) In fairness, Carvin has a tough task: The Virginia legislature was rather brazen about its attempts to push black voters into the contested district, even setting a statistical goal. He tries to argue that politics, not race, guided the redistricting—and partisan gerrymandering is considered constitutional. If race and politics happened to align here, he contends, that’s not a constitutional problem.

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Kagan floats a hypothetical about “racist map-drawers” who segregate blacks into a single voting district because they don’t like blacks.

“ ‘We don’t like African ­American voters, and we’re just going to keep them all in one district,’ ” Kagan says, speaking for this imagined group. “ ‘But we also have a second aim. … It turns out that African Americans vote in a particular way. And so our second aim is that we are going to achieve some kind of partisan advantage as a result of this segregation.’ ”

“So is that unconstitutional?” Kagan asks.

Nope, Carvin says—if racist redistricting was equally motivated by political concerns, it passes constitutional muster.

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Carvin has nibbled the cheese, and you can almost hear the mouse trap snap shut.

“That sounds to me,” Kagan says, with her signature quizzical head tilt, “as though it’s a harmless error rule for racial discrimination.” In other words, Carvin’s proposal would allow racial gerrymandering—even outwardly racist redistricting!—so long as legislators assert that they would have drawn identical maps in order to protect their incumbencies. At least in the realm of redistricting, the Equal Protection Clause would be defanged.

Roberts attempts to run interference for Carvin, a position once savored by Scalia, Carvin’s SCOTUS spirit animal.

“How do you show what the motive of the legislature was?” Roberts asks, implying that the court should trust legislators when they swear that politics, not race, guided their redistricting. Carvin nods eagerly—but Justice Ruth Bader Ginsburg effectively neuters this line of argument by asking how the court can assume politics is the guiding principle behind a particular redistricting.

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“Rightly or wrongly, the drafter of the plan represented to the court, ‘I haven’t looked at partisan performance. It was not one of the factors I considered in drawing districts,’ ” Ginsburg tells Carvin. Implication: He looked at race instead.

Ginsburg’s and Kagan’s questioning mounts a strong case that the legislature’s map was unconstitutionally racist—that it used race as a primary guide to redistricting—and the court should craft a rule that forbids such blatant racial gerrymandering. And oddly enough, the justices have a friend in Virginia, which has performed an about-face on its own districts. When voters filed their lawsuit against the legislature, the attorney general was arch-conservative Ken Cuccinelli, who once argued that Virginia should be exempted from the Voting Rights Act. But now the attorney general is Mark Herring, a very sane Democrat who’s happy to keep the newly drawn, nonracist district in place. Herring and his solicitor general, Stuart Raphael, argue that “politics didn’t control” the initial redistricting; race did, so the racial gerrymander must remain invalidated.

Alito, who spends much of Raphael’s argument time cracking up with Kagan over something she whispered, asks the solicitor general whether “anything happened” between “the time when your office took the prior position and your appearance here today?” The justice wants to dismiss the change in position as a partisan flip-flop, but Raphael stays on point, laying out the abundant evidence that the gerrymander was, indeed, racial. Alito eventually gives up and goes back to joking with Kagan, who promptly makes him laugh so hard that he covers his mouth with his hand. (It is strangely reassuring to see Alito display an earnest expression of joy.)  

In a case like this, you’re supposed to keep all eyes on Justice Anthony Kennedy, who is the swing vote on racial gerrymandering and pretty much every other case ever. But Kennedy seems uncertain about the proper course of action here, probing both sides for a workable solution but ending the morning with no easy path forward. The escape hatch in Wittman—to deny Forbes standing and refuse to rule on the merits—is likely off the table: A majority of the justices seem to agree that Forbes had, in Kagan’s words, “a legally cognizable interest” in suing to get back his old district “when some court has taken it away.”

But the heart of the case, the possible conflict between the Voting Rights Act and the Equal Protection Clause, remains a Gordian knot. The VRA was designed in part to help give minority voters the ability to elect their preferred candidates by concentrating their voting power in certain districts. History, however, shows us that states can abuse race-conscious redistricting, sorting minorities by race then cramming them in a single district while cloaking racism in partisanship. The record amply demonstrates how Virginia legislators did just that. Now we’ll see whether the court of color blindness is willing to challenge racial discrimination so obvious you can spot it on a map.