On Wednesday, the United States Supreme Court ruled for plaintiffs who had argued that 12 of Virginia’s Republican-drawn state House of Delegates districts were unconstitutional racial gerrymanders. The high court overturned a previous district court ruling that had found Virginia did not impermissibly use race. They remanded the case back to the district court for reconsideration using a different legal standard that makes it much more likely that many of these challenged districts could ultimately be invalidated.
Republican legislators admitted to using a hard population threshold of 55 percent African American when they redrew state House districts that already had a black majority. This was done without consideration as to whether that proportion was actually necessary to elect black voters’ representatives of choice under the Voting Rights Act. In most cases, the needed proportion was likely below that number. By packing black voters into a few heavily black districts, legislators made it harder for black voters to elect their preferred candidates in neighboring seats.
However, the district court ruled that because legislators’ map didn’t flagrantly override other traditional redistricting criteria like compactness, it wasn’t immediately obvious that race “predominated” the decision-making process. Wednesday’s Supreme Court ruling faulted the district court for using the wrong legal standard, holding that plaintiffs in racial gerrymandering cases like this one did not need to prove that the state had violated traditional redistricting criteria like compactness.
This distinction is important because not all gerrymanders have odd shapes, and it’s often far easier for plaintiffs to prove that a map has a racially discriminatory impact than to show that those drawing it acted with discriminatory intent. The case will now go back to the district court, where plaintiffs won’t have to meet the much higher burden of proving that legislators subordinated other criteria to race.
This lower threshold of burden could make it easier to bring racial gerrymandering challenges in the future. That could have profound consequences, since Daily Kos Elections has previously demonstrated how nearly every Southern state could have drawn another congressional district to elect black or Latino voters’ candidate preference in the 2010s round of congressional redistricting. Many Republican-drawn state legislatures could similarly face future challenges just like in Virginia.
This ruling could result in an outcome much like a 2015 Supreme Court ruling against Alabama, where they faulted the state for using a mechanical population proportion threshold without demonstrating it was necessary to elect black voters’ candidate choice. The court also remanded that decision back to the lower court, which in turn eventually struck down Alabama’s legislative districts in January as unconstitutional racial gerrymanders and ordered new maps.
There is no guarantee that a reconsidered district court ruling could come in time to affect Virginia’s state House elections this November, and a delayed ruling could potentially even result in 2018 special elections for the affected districts. However, if the court strikes down the districts in question and orders legislators to draw new ones, black voters and consequently Democrats could gain significantly.
The Republican-controlled legislature currently lacks the votes to override Democratic Gov. Terry McAuliffe’s vetoes, and this situation could persist following the 2017 elections if Democrats win the race to succeed McAuliffe. After a federal court struck down Virginia’s congressional map in an unrelated racial gerrymandering case in 2015, the two parties couldn’t reach a compromise, so the court drew its own plan for the affected districts.
Such a result could see a dramatically more favorable map for Democrats than if Republicans got another chance to draw a new gerrymander. A new court-drawn map wouldn’t automatically hand Democrats control of the state House, but it could at least put the possibility of majority on the table. That would be an enormous victory against gerrymandering considering that the current map has consistently given Republicans roughly a two-thirds majority even though they haven’t won a statewide election since 2009.
A state court on Tuesday allowed an unrelated lawsuit to proceed to trial against both Virginia’s state House and state Senate maps. Unlike the federal racial gerrymandering case, that upcoming suit challenges the maps under a state constitutional provision that mandates districts be compact. The U.S. Supreme Court also has yet to rule in another critical racial gerrymandering lawsuit in North Carolina, which could affect how the district court in Virginia’s racial gerrymandering case revisits its overturned ruling.