Next week, the Supreme Court will hear oral argument regarding racial gerrymandering in two southern states: Virginia (Bethune-Hill v. Virginia State Board of Elections, No. 15-680) and North Carolina (McCrory v. Harris, No. 15-1262).
The topic was brought before the Supreme Court earlier this year in Wittman v. Personhuballah, No. 14-1504, however, the Justices dismissed the case on procedural grounds. Without further clarifying when state legislatures make too much use of race in drawing new election district maps, the Court held that the Virginia Congressmen who had intervened in the case in order to preserve the state’s redistricting plan did not have standing to sue, because they had not suffered any injury.
The facts in both Bethune-Hill and McCrory appear similar, but the lower courts produced different results. The plaintiffs in each case claimed that the state’s redistricting plan packed certain voting districts with a high percentage of African-American voters, reducing their percentage in other districts and therefore creating a more favorable result for Republican politicians in the other districts.
The Supreme Court guideline for determining whether a redistricting plan is suspect was established in Miller v. Johnson, 515 U.S. 900 (1995). The Court stated then that race must not be a predominant factor in creating the redistricting plan, and that race would be found to be a predominant factor when “racial considerations are prioritized over traditional redistricting principles” that the Court described. The Court also stated that when race is found to be a predominant factor, strict scrutiny must be applied, and the plan must be narrowly tailored to achieve a compelling governmental interest.
In Bethune-Hill, the District Court held that race was not a predominant factor, even when the state had specified a percentage of African-Americans to be included in certain districts. The Court stated that the plaintiffs must show “an actual conflict between traditional redistricting principles” and race, and that the plaintiffs in the present case had failed to do so. The plaintiffs appealed to the Supreme Court, arguing that the District Court erred in creating this new standard, and that they should only have to prove that race was a predominant factor.
In McCrory, the District Court found race to be a predominant factor in two districts that have been under fire in the past for claims of racial gerrymandering. The Court held that in North Carolina’s redistricting plan created too high a percentage of African-Americans within the two districts. The defendants in the lower court appealed to the Supreme Court, arguing that the District Court erred in applying a form of strict scrutiny to the state’s redistricting plan.
Though the Supreme Court did not rule on the issue of racial gerrymandering earlier this year, it will have two more opportunities to do so this week. The Court may need to clarify the standard for when a redistricting plan is suspect, and when strict scrutiny is required. The Court must also resolve the split among lower courts about when a higher level of scrutiny is required.