Bethune-Hill v. Va. State Bd. of Elections

137 S.Ct. 788

197 L.Ed.2d 85

Golden BETHUNE–HILL, et al., Appellants

v.VIRGINIA STATE BOARD OF ELECTIONS, et al.

No. 15–680.

Supreme Court of the United States

Argued Dec. 5, 2016.

Decided March 1, 2017.

Marc E. Elias, Washington, DC, for Appellants.

Irving L. Gornstein for the United States as amicus curiae, by special leave of the Court, supporting vacatur in part and affirmance in part.

Paul D. Clement, Washington, DC, for Appellees.

Kevin J. Hamilton, Abha Khanna, Ryan Spear, William B. Stafford, Perkins Coie LLP, Seattle, WA, Marc E. Elias, Bruce V. Spiva, Aria C. Branch, Perkins Coie LLP, Washington, DC, for Appellants Golden Bethune–Hill, Christa Brooks, Chauncey Brown, Atoy Carrington, Davinda, Davis, Alfreda Gordon, Cherrelle Hurt, Thomas Calhoun, Tavarris Spinks, Mattie Mae Urquhart, Vivian Williamson, and Sheppard Roland Winston.

Efrem M. Braden, Katherine L. McKnight, Richard B. Raile, Baker & Hostetler LLP, Washington, DC, Paul D. Clement, Erin E. Murphy, Michael D. Lieberman, Bancroft PLLC, Washington, DC, Dalton Lamar Oldham, Jr., Dalton L. Oldham LLC, Columbia, SC, for Appellees.

Justice KENNEDY delivered the opinion of the Court.

This case addresses whether the Virginia state legislature's consideration of race in drawing new lines for 12 state legislative districts violated the Equal Protection Clause of the Fourteenth Amendment. After the 2010 census, some redistricting was required to ensure proper numerical apportionment for the Virginia House of Delegates. It is undisputed that the boundary lines for the 12 districts at issue were drawn with a goal of ensuring that each district would have a black voting-age population (BVAP) of at least 55%.

Certain voters challenged the new districts as unconstitutional racial gerrymanders. The United States District Court for the Eastern District of Virginia, constituted as a three-judge district court, rejected the challenges as to each of the 12 districts. As to 11 of the districts, the District Court concluded that the voters had not shown, as this Court's precedent requires, "that race was the predominant factor motivating the legislature's decision to place a significant number of voters within or without a particular district." Miller v. Johnson, 515 U.S. 900, 916, 115 S.Ct. 2475, 132 L.Ed.2d 762 (1995). The District Court held that race predominates only where there is an " ‘actual conflict between traditional redistricting criteria and race,’ " 141 F.Supp.3d 505, 524 (E.D.Va.2015), so it confined the predominance analysis to the portions of the new lines that appeared to deviate from traditional criteria, and found no violation. As to the remaining district, District 75, the District Court found that race did predominate. It concluded, however, that the lines were constitutional because the legislature's use of race was narrowly tailored to a compelling state interest. In particular, the District Court determined that the legislature had "good reasons to believe" that a 55% racial target was necessary in District 75 to avoid diminishing the ability of black voters to elect their preferred candidates, which at the time would have violated § 5 of the Voting Rights Act of 1965. Alabama Legislative Black Caucus v. Alabama, 575 U.S. ––––, ––––, 135 S.Ct. 1257, 1274, 191 L.Ed.2d 314 (2015) (internal quotation marks omitted and emphasis deleted).

On appeal to this Court, the challengers contend that the District Court employed an incorrect legal standard for racial predominance and that the legislature lacked good reasons for its use of race in District 75. This Court now affirms as to District 75 and vacates and remands as to the remaining 11 districts.

I

After the 2010 census, the Virginia General Assembly set out to redraw the legislative districts for the State Senate and House of Delegates in time for the 2011 elections. In February 2011, the House Committee on Privileges and Elections adopted a resolution establishing criteria to guide the redistricting process. Among those criteria were traditional redistricting factors such as compactness, contiguity of territory, and respect for communities of interest. But above those traditional objectives, the committee gave priority to two other goals. First, in accordance with the principle of one person, one vote, the committee resolved that "[t]he population of each district shall be as nearly equal to the population of every other district as practicable," with any deviations falling "within plus-or-minus one percent." 141 F.Supp.3d, at 518. Second, the committee resolved that the new map must comply with the "protections against ... unwarranted retrogression" contained in § 5 of the Voting Rights Act. Ibid. At the time, § 5 required covered jurisdictions, including Virginia, to preclear any change to a voting standard, practice, or procedure by showing federal authorities that the change would not have the purpose or effect of "diminishing the ability of [members of a minority group] to elect their preferred candidates of choice." § 5, 120 Stat. 580–581, 52 U.S.C. § 10304(b). After the redistricting process here was completed, this Court held that the coverage formula in § 4(b) of the Voting Rights Act no longer may be used to require preclearance under § 5. See Shelby County v. Holder, 570 U.S. ––––, ––––, 133 S.Ct. 2612, 2631, 186 L.Ed.2d 651 (2013).

The committee's criteria presented potential problems for 12 House districts. Under § 5 as Congress amended it in 2005, "[a] plan leads to impermissible retrogression when, compared to the plan currently in effect (typically called a ‘benchmark plan’), the new plan diminishes the number of districts in which minority groups can ‘elect their preferred candidates of choice’ (often called ‘ability-to-elect’ districts)." Harris v. Arizona Independent Redistricting Comm'n, 578 U.S. ––––, –––– – ––––, 136 S.Ct. 1301, 1307, 194 L.Ed.2d 497 (2016) (quoting 52 U.S.C. § 10304(b) ). The parties agree that the 12 districts at issue here, where minorities had constituted a majority of the voting-age population for many past elections, qualified as "ability-to-elect" districts. Most of the districts were underpopulated, however, so any new plan required moving significant numbers of new voters into these districts in order to comply with the principle of one person, one vote. Under the benchmark plan, the districts had BVAPs ranging from 62.7% down to 46.3%. Three districts had BVAPs below 55%.

Seeking to maintain minority voters' ability to elect their preferred candidates in these districts while complying with the one-person, one-vote criterion, legislators concluded that each of the 12 districts "needed to contain a BVAP of at least 55%." 141 F.Supp.3d, at 519. At trial, the parties disputed whether the 55% figure "was an aspiration or a target or a rule." Ibid. But they did not dispute "the most important question—whether [the 55%] figure was used in drawing the Challenged Districts." Ibid. The parties agreed, and the District Court found, "that the 55% BVAP figure was used in structuring the districts." Ibid. In the enacted plan all 12 districts contained a BVAP greater than 55%.

Who first suggested the 55% BVAP criterion and how the legislators agreed upon it was less clear from the evidence. See id., at 521 (describing the "[t]estimony on this question" as "a muddle"). In the end, the District Court found that the 55% criterion emerged from discussions among certain members of the House Black Caucus and the leader of the redistricting effort in the House, Delegate Chris Jones, "based largely on concerns pertaining to the re-election of Delegate Tyler in [District] 75." Id., at 522. The 55% figure "was then applied across the board to all twelve" districts. Ibid.

In April 2011, the General Assembly passed Delegate Jones' plan with broad support from both parties and members of the Black Caucus. One of only two dissenting members of the Black Caucus was Delegate Tyler of District 75, who objected solely on the ground that the 55.4% BVAP in her district was too low. In June 2011, the U.S. Department of Justice precleared the plan.

Three years later, before this suit was filed, a separate District Court struck down Virginia's third federal congressional district (not at issue here), based in part on the legislature's use of a 55% BVAP threshold. See Page v. Virginia State Bd. of Elections, 58 F.Supp.3d 533, 553 (E.D.Va.2014), vacated and remanded sub nom. Cantor v. Personhuballah, 575 U.S. ––––, 135 S.Ct. 1699, 191 L.Ed.2d 671 (2015), judgt. entered sub nom. Page v. Virginia State Bd. of Elections, 2015 WL 3604029 (June 5, 2015), appeal dism'd sub nom. Wittman v. Personhuballah, 578 U.S. ––––, 136 S.Ct. 1732, 195 L.Ed.2d 37 (2016). After that decision, 12 voters registered in the 12 districts here at issue filed this action challenging the district lines under the Equal Protection Clause. Because the claims "challeng[ed] the constitutionality of ... the apportionment of [a] statewide legislative body," the case was heard by a three-judge District Court. 28 U.S.C. § 2284(a). The Virginia House of Delegates and its Speaker, William Howell (together referred to hereinafter as the State), intervened and assumed responsibility for defending the plan, both before the District Court and now before this Court.

After a 4–day bench trial, a divided District Court ruled for the State. With respect to each challenged district, the court first assessed whether "racial considerations predominated over—or ‘subordinated’—traditional redistricting criteria." 141 F.Supp.3d, at 523. An essential premise of the majority opinion was that race does not predominate unless there is an "actual conflict between traditional redistricting criteria and race that leads to the subordination of the former." Id., at 524. To implement that standard, moreover, the court limited its inquiry into racial motive to those portions of the district lines that appeared to deviate from traditional criteria. The court thu...