High Court Looks for Racial Bias in Virginia Redistricting Case

WASHINGTON (CN) - In their second look at Virginia election districts, the justices of the Supreme Court appeared conflicted Monday over whether the map for the state's House of Delegates was racially gerrymandered.

Virginia redrew its legislative map in 2011 after getting new population data from the census conducted the year before. With voters set to hit the polls later in the year, state lawmakers put together a map that included 12 districts whose voting-age population was at least 55 percent black.

Initially a three-judge panel upheld the map as constitutional, but the judges reversed course after the Supreme Court determined they had applied the wrong standard for 11 of the districts.

Setting the stage for this morning’s appeal in Washington, the District Court found the map an unconstitutional racial gerrymander. 

In addition to the question of whether lawmakers focused too much on race when drawing the map, the justices spent a significant portion of arguments today on whether lawmakers should even have been able to appeal.

The Virginia House of Delegates was not an original defendant in the case, but intervened to defend the map in District Court.

Paul Clement, an attorney for state lawmakers with the firm Kirkland & Ellis, noted Monday that Virginia's attorney general was happy to let the House defend the law while before the District Court, and only reconsidered when the case went up to the Supreme Court. He said this should allow the House to carry the appeal.

"They forfeited the ability to insist that they have the exclusive right to represent the commonwealth," Clement said, referring to the attorney general's office.

Justice Sonia Sotomayor challenged this point, however, saying it would take away "from the people of Virginia the right to say who's going to speak on their behalf."

"Mr. Clement, that's a pretty extreme statement on your part," Sotomayor said.

Arguing the House does not have standing, Virginia Solicitor General Toby Heytens said that allowing the chamber to carry the appeal would empower lawmakers to challenge a wide range of election laws. Heytens also said the Virginia attorney general has the sole authority to defend the state's laws.

"There is only one sovereign whose law was declared unconstitutional by the federal district court," Heytens said. "And what this court is essentially being asked to do is to referee a dispute within the Virginia state government about whether Virginia should appeal that decision to this court."

Justice Samuel Alito asked, however, if the fact that the House will likely need to spend money on administrative issues coming from changes to the map should allow the chamber to step up and defend the map.

"If something causes me the loss of $5 or causes me to expend an hour that I would rather use for some other purpose, that's injury in fact," Alito said. "It is conceivable that this does not have even that kind of administrative impact on the House of Delegates?"

When arguments turned to the evaluation of the map, Clement said lawmakers only considered race when constructing the map to comply with the Voting Rights Act. Clement also contended that the District Court panel should have credited testimony from the map drawers to this end.

"Now, if you're going to deem their testimony not just incredible in certain particulars but across the board, then you're left with Hamlet without the prince," Clement said.

Perkins Coie attorney Marc Elias, arguing for the voters who challenged the map, said the District Court's credibility determinations were reasonable and that the Legislature was at fault for sticking so rigidly to the 55 percent black voting-age population baseline. He said the House should have given more care to each individual district rather than aiming for a specific voter makeup for all 12.

"Your honor, had the commonwealth of Virginia done even a modicum of district-by-district analysis, this would be a very different case," Elias said.

Just like on the question of standing, the justices were divided on the core issue of whether the redistricting effort was a racial gerrymander.

Chief Justice John Roberts pressed Elias on what the court should do with the fact that the first time the three-judge panel heard the case, it found the lawmakers' testimony credible, only to change course the next time around.

"The reality is that everything Jones said was the truth the first time and now everything he says the second time is not," Roberts said. "And it strikes me as a little awkward to apply the very deferential, clearly erroneous standard when you've got [these] other findings that are the exact opposite."

At the same time, Sotomayor questioned Clement about some of the ways the House got to its 55 percent target, including splitting streets down the middle depending on the racial makeup of each side.

"It's hard for me to imagine how race isn't predominant when they're getting down to the nitty-gritty of what side of a street you live on," Sotomayor said. "I don't know what compactness means when you use a line split of that nature. I don't know how you can look at that and not think that race predominated.”

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