WASHINGTON – Virginia's use of racial demographics to draw election districts over the past decade divided the Supreme Court Monday, a week before it will consider an even more explosive issue: partisan gerrymandering.
The court's conservative justices seemed inclined to let the state's Republican-controlled House of Delegates defend the racially drawn districts, even when the Democratic executive branch refused to do so. They also defended the GOP's decision to make 11 districts 55 percent African American, which a federal district court struck down as unnecessarily excessive.
"I'm wondering why 55 is so problematic here, given that the states have to have some flexibility," Associate Justice Brett Kavanaugh told lawyers for the state and individual challengers. "If a state ... said, 'We're going to do 52 percent or 53 percent', they would be hammered from the other side, saying you are discriminating against African American voters."
But liberal justices argued that the GOP House lacked the authority to defend the districts because it does not represent the governor or state Senate. And they expressed doubt about the way the lines were drawn.
"They drew lines in the middle of a street, with black houses on one side and white houses on another side," Associate Justice Sonia Sotomayor said. "I don't know how you can look at that and not think that race predominated."
It was the second time the high court has heard the case. In 2017, it sided with challengers in demanding further review of the districts by the lower court. The 7-1 ruling was a temporary victory for Democrats who argued that the maps were drawn to pack more blacks than necessary in some districts to give Republicans the advantage in many more surrounding districts.
The Voting Rights Act of 1965 requires states to draw districts that enable African-Americans to elect their chosen representatives, lest blacks not form a majority anywhere.
Two decades ago, Democrats used the law to demand "majority-minority" districts. After Republicans took over many state legislatures in 2010, they began drawing districts with what critics claimed were more African-Americans than necessary, in order to protect surrounding districts.
A federal district court panel originally upheld the Virginia lines in 2015. Paul Clement, representing the House of Delegates, said they were used to protect black voters and lawmakers from a potentially low African-American turnout.
During the first oral argument in 2016, Marc Elias, the attorney representing black voters, said the lower court allowed legislators to "corral" them "because we think they all vote alike, and we don't want them infecting the neighborhood."
After the Supreme Court sent the case back, a three-judge federal district court panel ruled 2-1 in June that the 11 districts were racially gerrymandered. It ordered the General Assembly to draw a new map for this fall's state legislative elections.
Those elections will determine which party controls the redistricting process after the 2020 Census. Republicans control both the House and Senate by the narrowest of margins.
On Monday, Clement and Elias were back, but it was Clement's task to convince the justices to overrule the district court. He had a difficult time just convincing them that the House of Delegates was qualified to bring the case.
Elias decried what he called "a one-size-fits-all, 55 percent racial rule" for all 11 challenged districts that left fewer African Americans to influence a far greater number of other House elections. He likened it to "racial stereotyping."
The federal government, represented by assistant solicitor general Morgan Ratner, argued that the House did not have standing to bring the case. But on the merits, she said, the district court's ruling should be overruled.
Virginia Solicitor General Toby Heytens defended the state's right to represent itself, rather than cede to the GOP-controlled House. He denied that Democrats' decision not to challenge the lower court ruling was because of political self-interest.
"You can just use common sense," Chief Justice John Roberts retorted. "I haven't seen the case, I don't think, where the Democratic legislature has challenged an alleged gerrymander because it was too favorable to Democrats, or vice versa."
This article originally appeared on USA TODAY: Supreme Court seems divided on Virginia's use of race to draw election districts