Why the Supreme Court’s Latest Gerrymandering Decision Doesn’t Go Far Enough
In this column, erstwhile attorney and GQ staff writer Jay Willis untangles the messy intersection of law, politics, and culture.
On Monday, the Supreme Court released its opinion in Virginia House of Delegates v. Bethune-Hill, in which a group of Virginia voters alleged that the Republican-controlled state legislature drew House of Delegates district boundaries which unlawfully diluted the African-American vote. The voters, the Court decided, are right—but not for the reasons voting rights activists had hoped.
Even in the slow-moving world of federal appellate litigation, this opinion has been a long time coming. In 2011, one year after the most recent census, the Virginia legislature set about its constitutionally-prescribed task of drawing new districts for use in the next ten years of state elections. In 2014, the voters sued, claiming that in 12 of the 100 House of Delegates districts, Republicans packed African-American voters into majority-black districts to reduce their influence in statewide politics. Three years later, the Supreme Court ruled that one of those districts did not violate the U.S. Constitution, but reserved judgment on the remaining 11 and sent the case back to lower courts for resolution.
In 2018, a district court panel found that the other 11 districts were illegal racial gerrymanders, too. Mark Herring, Virginia's Democratic attorney general, declined to appeal, and Democratic governor Ralph Northam appointed Bernard Grofman, a political science professor at University of California, Irvine, to re-draw the offending boundaries before the 2019 election. (In an ironic twist, Northam and Herring, both of whom were embroiled in their own racist scandals last year, are now the lead defenders of minority voting rights in Virginia.) As part of a last-ditch effort to save their 2011 map, Republicans in the House of Delegates filed an appeal, arguing that if Herring would not defend the state, they would do so in his place.
The Court, for the last time, ruled against them. But in its 5-4 opinion in Virginia House of Delegates v. Bethune-Hill, the Court did not actually decide whether Republicans discriminated against black Virginians in 2011. Instead, it decided that the House of Delegates does not have standing—the legal right to appeal the district court's decision—in the first place. State law entrusts litigation authority to the attorney general, not the House of Delegates, wrote Justice Ruth Bader Ginsburg for the majority. "In short, Virginia would rather stop than fight on. One House of its bicameral legislature cannot alone continue the litigation against the will of its partners in the legislative process."
On the surface, this is a great resolution for Northam, Herring, and anyone else who would like to see elections untainted by the deck-stacking efforts of those who drew the lines. "Black voters will finally vote for state House Delegates under a fair map," declared prominent Democratic election law attorney Marc Elias, who represented the plaintiffs. "The GOP's racial gerrymander is in the ash heap of history." Former attorney general and voting rights advocate Eric Holder hailed the decision as an "important victory" that will allow Virginians to "elect a House of Delegates that actually represents the will of the people" this fall.
The decision will also matter beyond the immediate results of the upcoming election. Grofman's map makes six existing Republican-held districts more competitive, which creates six new ways in which the GOP could lose its 51-49 House of Delegates majority in 2019; the federal government will conduct a new census in 2020, and Virginia will use that data to conduct its next regularly-scheduled redistricting in 2021. If Democrats control the state's General Assembly this time around, they can prevent Republicans from enshrining racial discrimination into law for another decade.
What Monday's result is not, however, is a strong opinion condemning the scourge of gerrymandering, whether along racial or partisan or any other relevant lines. Because the majority found that the House of Delegates lacks standing, it did not reach the substance of the dispute; the dissent, too, concerns itself only with whether legislators have the right to defend their handiwork in court. The holding's technical nature probably played a role in forming the unconventional majority and dissenting coalitions: liberal justices Ginsburg, Sonia Sotomayor, Elena Kagan banded together with conservative justices Clarence Thomas and Neil Gorsuch in the former camp, and conservatives Samuel Alito, chief John Roberts, and Brett Kavanaugh joined liberal justice Stephen Breyer in the latter.
The 2020 census will be the first since the Supreme Court's 2013 landmark Shelby County v. Holder decision, when the justices invalidated key provisions of the Voting Rights Act that required states with histories of race-based voter discrimination to obtain federal permission before changing their election laws. (That case is what made it possible for jurisdictions covered by the Voting Rights Act—a group that included Virginia—to implement voter ID laws designed to suppress turnout among racial minority groups.) As that census looms, Bethune-Hill gave the Court a chance to provide clear guidance about what states can and cannot do as they go about the critical task of re-drawing their district lines. The justices' choice not to do so leaves open the possibility that Republican legislatures, unburdened by restrictions handed down from the nation's highest court, will continue to do as much gerrymandering as they think they can get away with.
Eventually, Democrats may win court battles against such gerrymanders, as they did here. But litigation takes time, and line-drawing, relatively speaking, does not. The Bethune-Hill decision cannot change the previous four elections decided under the 2011 map, and will affect only the 2019 contest before the slate gets wiped clean again. Even when a challenge succeeds, as it did here, it might not happen soon enough to matter.
Originally Appeared on GQ
