After studying the recent Virginia gerrymandering case ruling that 11 Districts had lines drawn unconstitutionally — what is the most shocking paragraph in the entire case? The tally showing that all 7 Justices and the Chief Justice concurred in the Judgment to some degree. Only Justice Thomas partially dissented.
KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C. J., and GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. ALITO, J., filed an opinion concurring in part and concurring in the judgment. THOMAS, J., filed an opinion concurring in the judgment in part and dissenting in part.
BETHUNE-HILL ET AL. v. VIRGINIA STATE BOARD OF ELECTIONS ET AL., slip op., 580 U. S. at 4 (2017).
Then it was the unexpected discovery that Justice Thomas’ powerful, partial dissent was the most moving and deeply thoughtful analysis in the entire case. Known as a conservative jurist, Justice Thomas’ partial dissent was an eye-opener. It is worth reading the case for that alone. See case here. He not only wanted the 11 districts reviewed again, as far as he was concerned that remaining district should be analyzed too. His conclusion follows:
Despite my sympathy for the State, I cannot ignore the Constitution’s clear prohibition on state-sponsored race discrimination. “The Constitution abhors classifications based on race, not only because those classifications can harm favored races or are based on illegitimate motives, but also because every time the government places citizens on racial registers . . . , it demeans us all.” Grutter, 539 U. S., at 353 (THOMAS, J., concurring in part and dissenting in part). This prohibition was “[p]urchased at the price of immeasurable human suffering,” and it “reflects our Nation’s understanding that such classifications ultimately have a destructive impact on the individual and our society.” Adarand Constructors, 515 U. S., at 240 (THOMAS, J., concurring in part and concurring in judgment). I respectfully dissent from the Court’s judgment as to District 75.
Id. at slip op. 9 (Justice Thomas Dissent).
So what was the big fuss over the Virginia gerrymandering case? Didn’t Virginia State argue that the Black Caucus helped draw the lines? If there are more black voters in 12 districts out of 100, doesn’t that mean the African-American vote can dominate in those districts? Isn’t that good enough?
Liz Kennedy zeroes in on the real reason for the redistricting:
In Bethune-Hill v. Virginia State Board of Elections, a group of voters claim that the Virginia General Assembly violated the rights of African American voters in using a racial quota to pack voters into a dozen of the 100 districts for the state’s House of Delegates, diminishing that community’s electoral power in the state as a whole.
Liz Kennedy and Danielle Root, Center for American Progress, October 19, 2016, Redistricting and Representation in the 2016 Elections and Beyond
Travis Fain elaborates:
The lawsuit targets 12 districts in the House of Delegates, and it follows the same argument that invalidated Virginia's 3rd Congressional District earlier this year: That the General Assembly's Republican majority focused on race as it drew maps, packing minority voters into a handful of districts and diluting their voting power in neighboring ones.
Travis Fain, Daily Press, April 30, 2015, Evidence fight points to secret redistricting talks in Virginia
The U.S. Supreme Court did not agree with the lower court or the State of Virginia arguments that the redistricting lines were constitutional. It held that 11 districts violated the Constitution and agreed that 1 district did not. It then sent the case back to the lower court to review the 11 districts according to the detailed analysis that it laid out in its opinion.
Justice Kennedy writes:
The ultimate object of the inquiry, however, is the legislature’s predominant motive for the design of the district as a whole. A court faced with a racial gerrymandering claim therefore must consider all of the lines of the district at issue; any explanation for a particular portion of the lines, moreover, must take account of the districtwide context.
Id. at slip op. 12.
The Supreme Court demanded that the Plaintiffs meet a burden of proof to show Virginians had been separated into different voting districts on the basis of race without sufficient justification by either: a) circumstantial evidence showing the shape or demographics of the district; or b) direct evidence showing that the race was the predominant factor motivating the legislators to draw the district line.
Justice Kennedy continues:
Concentrating on particular portions in isolation may obscure the significance of relevant districtwide evidence, such as stark splits in the racial composition of populations moved into and out of disparate parts of the district, or the use of an express racial target. A holistic analysis is necessary to give that kind of evidence its proper weight.
Id. at slip op. 12 (emphasis added).
The Court ruled that only one voting district did not violate the Equal Protection Clause, sending the other 11 districts back to the lower court.
Justice Kennedy concludes:
The Court’s holding in this case is controlled by precedent. The Court reaffirms the basic racial predominance analysis explained in Miller and Shaw II, and the basic narrow tailoring analysis explained in Alabama. The District Court’s judgment as to District 75 is consistent with these principles. Applying these principles to the remaining 11 districts is entrusted to the District Court in the first instance.
The judgment of the District Court is affirmed in part and vacated in part. The case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Id. at slip op. 16-17 (emphasis added).
Take a minute to review the case (see link above) and see if you agree with the Court’s reasoning. What do you think it portends for GOP’s future gerrymandering cases across the nation?
Interestingly, the lower court just awarded attorney fees in a different Virginia gerrymandering case. According to Travis Fain on March 3 the court awarded $1.3 million to the challengers after the State of Virginia lost on its district line drawing in the 3rd District. Allegedly the attorney fees are coming out of GOP campaign funds, but it would be shameful if taxpayers got pegged with the bill! Travis FainContact Reportertfain@dailypress.com. March 3, 2017. Another redistricting blow for Virginia GOP: Judges award $1.3 million in attorneys fees.
P.S. Thanks to the law firm(s) who brought this case and argued so passionately for good law. Thanks most of all for never giving up! Hopefully you will see the GOP paying you attorney fees like the attorneys who were awarded $1.3 million two days ago! You’ve earned every penny and did a service for the nation.