Bethune-Hill v. Virginia Board of Elections

PETITIONER: Golden Bethune-Hill, et al.
RESPONDENT: Virginia State Board of Elections, et al.
LOCATION: U.S. District Court for the Eastern District of Virginia

DOCKET NO.: 15-680
DECIDED BY:
LOWER COURT: Federal district court

CITATION: US ()
GRANTED: Jun 06, 2016
ARGUED: Dec 05, 2016

ADVOCATES:
Irving L. Gornstein - for United States as amicus curiae
Paul D. Clement - for appellees
Mark E. Elias - for appellants

Facts of the case

Based on the 2010 Census, the Virginia General Assembly sought to redraw the legislative districts for the Virginia Legislature. At the time the districting legislation was prepared, Virginia was subject to Section 5 of the Voting Rights Act, and therefore any new districting plan must have ensured that there would be no “retrogression” in the ability of racial minorities to elect the candidate of their choice. Accordingly, the new districting plan contained 12 majority-minority districts. On December 22, 2014, the plaintiffs, each of whom resided in one of the twelve challenged districts, sued and argued that those districts constituted racial gerrymanders that violated the Equal Protection Clause of the Fourteenth Amendment. The district court held that the plaintiffs did not establish that race was the predominant factor in the creation of 11 of the 12 challenged district. The district court also held that, although race was the predominant factor in the creation of one district, in doing so the General Assembly was pursuing a compelling state interest and its use of race was narrowly tailored to serve that interest.

Question

  1. Can race be a predominant consideration even where it is the most important consideration in drawing a given district unless the use of race results in "actual conflict" with traditional districting criteria?
  2. Does the admitted use of a one-size-fits-all 55% black voting age population floor amount to racial predominance and trigger strict scrutiny?
  3. Should courts disregard the admitted use of race in drawing district lines in favor of examining circumstantial evidence regarding the contours of the districts?
  4. Must racial goals negate all other districting criteria in order for race to predominate?
  5. Was the General Assembly's predominant use of race in drawing House District 75 narrowly tailored to serve a compelling government interest?

Media for Bethune-Hill v. Virginia Board of Elections

Audio Transcription for Oral Argument - December 05, 2016 in Bethune-Hill v. Virginia Board of Elections

John G. Roberts, Jr.:

We will hear argument first this morning in Case 15-680, Bethune-Hill v. The Virginia State Board of Elections. Mr. Elias.

Mark E. Elias:

Mr. Chief Justice, and may it please the Court: The district court created out of whole cloth a new legal standard that permitted Virginia to apply a one-size-fits-all, 55 percent racial floor to all 12 of its predominantly black districts.

Virginia applied this 55 percent rule to move voters in and move voters out of districts on the basis of race, regardless of the differences in voting patterns, geography, demographics, or the actual interests of black voters in each of those districts. This actual conflict test, which the D.C. -- which -- I'm sorry -- which the district court invented for predominance has no basis in this Court's jurisprudence.

Instead, it confers a sort of judicial immunity to visually appealing districts that nevertheless were drawn with the predominant purpose of placing voters within and without based solely on the color of their skin.

John G. Roberts, Jr.:

I'm -- I'm not quite sure I understand how you assess predominance, which I think is the challenge here. And to take a hypothetical, let's say you're trying to select people for a particular board or something; and you say they have to come from a city with more than 500,000 people, absolutely.

And then you say, and they have to come from such a city in California.

Can't be anywhere else. Now, which is the predominant factor? The 500,000 or California?

Mark E. Elias:

Well, in this case, under the jurisprudence of -- of --

John G. Roberts, Jr.:

I don't really care -- I'm not talking about this case.

It's a hypothetical.

Mark E. Elias:

I think that you -- you can set aside the -- the population center, and you would look at the State of California as the predominant factor because it is the criteria to which all others must yield, and in this --

John G. Roberts, Jr.:

Well, how do you know that? I mean, it seems to me that the 500,000 is the criteria which -- to which all others might yield.

Mark E. Elias:

In -- in -- in that hypothetical, each of them might be an unyielding criteria.

John G. Roberts, Jr.:

Right.

Mark E. Elias:

In this case, there is only one.

John G. Roberts, Jr.:

Well, no, I know. That's why I'm looking -- that's why this is called a hypothetical, because it's not about the particular case. But I -- I -- obviously, what I'm trying to highlight is, "predominant" means one that dominates over all the others.

Mark E. Elias:

Right.

John G. Roberts, Jr.:

And it's easy to imagine situations where you cannot say that one dominates over all the others.

Mark E. Elias:

I think --

John G. Roberts, Jr.:

So what do you do in a situation like that?

Mark E. Elias:

I think I now understand your -- your question. In that case, neither criteria would predominate, because, in fact, neither one controls the other.

And in that case, we would not have met our burden of predominance; and as a result, we wouldn't -- we -- we wouldn't get to the second step of strict scrutiny. Where you have one criteria, though, then you can fairly say there was predominance, because --

John G. Roberts, Jr.:

Well, if you're still -- you're trying to figure out which -- which predominates.

And I think this is where the inquiry or the test that you challenge comes from. One way to tell which is the predominant is to see if they conflict.

And if they conflict, then how do you resolve it? And whatever trumps the other, that's the predominant one.

Mark E. Elias:

That -- that --

John G. Roberts, Jr.:

Right?

Mark E. Elias:

Your Honor, that is one way that evidence is adduced to determine predominance.

John G. Roberts, Jr.:

Uh-huh.

Mark E. Elias:

But it is not the only way.

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