Re-Districting After Shelby County v. Alabama: a Volatile Mix of Race and Politics

In 2012, following the 2010 decennial census, Virginia re-drew the boundaries of its Congressional Districts.  In 2013, plaintiffs brought a Voting Rights Act challenge to that re-districting.  They alleged that the re-districting unconstitutionally packed African-American voters into a small number of Districts.  The suit was ultimately defended by Virginia's Republican Congressional delegation and was initiated by plaintiffs working with Democratic party advocates.

In 2014, a three judge panel of the U.S. District Court for the Eastern District of Virginia ruled in favor of the plaintiffs.  That ruling was appealed to the Supreme Court of the United States which ordered the District Court to reconsider its ruling in light of the Supreme Court's decision (subsequent to the District Court ruling) in Alabama Legislative Black Caucus v. Alabama.  On reconsideration, the District Court in June of 2015 again struck down the boundaries of the 3^rd Congressional District.  The District Court ruled that if the General Assembly did not re-draw the boundaries, the Court would do so.  The General Assembly determined in September not to draw new boundaries.

Overruling requests to stay its ruling pending further appeal, on January 7, 2016, the District Court did what it said would do: it re-drew the map of the 3^rd Congressional District.  Along the way, it altered the boundaries of five of Virginia's eleven Congressional Districts.  In so doing, the Court re-drew the map of Virginia politics and invited a re-examination of the rules of American politics.

Here are some lessons from that re-districting experience.

1. Just because the U.S. Department of Justice "pre-cleared" Virginia's 2012 re-districting does not mean that the re-districting was lawful. In 2013, in Shelby County v. Alabama, the Supreme Court of the United States ruled the Voting Rights Acts Section 4 formula for determining which states required Justice Department pre-clearance of voting districts, was unconstitutional.  So, even though the law is now understood to not require pre-clearance, Virginia got pre-clearance in 2012, before Shelby was decided.  That pre-clearance did not insulate against a challenge to race-based gerrymandering.

1. Even a "good faith" consideration of race, when setting district boundaries, is unconstitutional. Legislators' statements that they considered race to avoid diminishing, or retrogression of, African-American voting strength was evidence that racial considerations predominated the boundary setting.  That alleged benign racial motivation was, nevertheless, unconstitutional.

1. The Court may consider circumstantial evidence of impermissible racial motive in setting district boundaries. That circumstantial evidence can include evidence that the district boundaries sacrifice otherwise appropriate boundary considerations.  These include compact districts, districts with contiguous territory, and respect in districting for existing political boundaries.

1. Just because partisan political considerations, or the protection of incumbents, also motivated district setting, does not mean that racial considerations were not the predominant consideration.

1. The Court may examine which populations moved in, or out, of a district with new boundaries to assess whether there was a racial motivation in the boundary drawing.

1. The legislature may not set a minimum Black Voting Age Percentage as a threshold to ensure that a racial minority's ability to elect a candidate of choice is not diminished. Rather, a racial bloc voting analysis ("RBVA"), which takes into consideration particular groups' voting history in particular districts and even precincts, may inform the legislature's analysis of how to avoid impairing a minority group's voting strength.  When Virginia set, for the 3^rd Congressional District, a floor of 55% African-American population, without a RBVA to determine whether a lower percentage or higher percentage was necessary to avoid diluting African-American voting strength, it acted unconstitutionally.

1. A re-districting body may consider an RBVA for a particular district. It may also consider the requirement in Section 5 of the Voting Rights Act that a redistricting plan "maintain a minority's ability to elect a preferred candidate of choice."  What a districting plan cannot do is substitute a racial quota for those more complicated considerations.

1. The District Court in a VRA case retains jurisdiction to impose a remedy for a VRA violation even if the question of VRA liability is pending in the Supreme Court.

1. When setting new district boundaries, the Court is not obligated to even attempt to preserve the previous boundaries' partisan political alignment.

1. Indeed, Judge Payne concluded that gerrymandering for partisan political considerations may itself be unconstitutional.

1. When setting new district boundaries, the first and foremost consideration is to undo the effect of the improper boundary. Virginia's own Constitution requires districts to be compact and contiguous, and Virginia has traditionally favored "respect for political subdivisions" and "consideration of communities of interest" when setting boundaries.  A VRA court will adopt those same considerations.

1. A remedial plan to cure a VRA violation should, to the extent practicable, affect only the district that was unlawfully drawn and any adjacent districts.

1. As of the first District Court ruling in favor of plaintiffs, the Court determined plaintiffs were entitled to payment of more than $750,000 in fees and costs. Since then an appeal the Supreme Court and new District Court proceedings concerning both liability and an appropriate remedy have surely only increased that cost.

Drawing voting districts inevitably raises volatile and emotional questions of race and politics.  In political terms, the stakes could not be higher.  The litigation that stems from re-districting can be just as complex.

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Helpful Links:

Page v. Virginia State Board of Elections, 3:13cv678 (June 5, 2015 Memorandum Opinion ruling that 3^rd Congressional District in 2012 plan was unconstitutional).

Personhuballah v. Alcorn, 3:13cv678 (November 15, 2015 Report of the Special Master concerning remedies for the unconstitutional 2012 plan)(the Page and Personhuballah cases are the same case – the style changed over time with new plaintiffs and defendants).

Personhuballah v. Alcorn, 3:13cv678 (January 7, 2016 Memorandum Opinion prescribing remedy for 2012 plan)