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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

Mark E. Elias:

If, in fact, to use your hypothetical, the legislature of California -- let's assume that they're the ones setting these criteria -- says, our predominant factor, the -- the dominant and controlling factor, is that it has to come from the State of California, the fact that it may also come from a -- the members may also come from a city with more than 500,000 members doesn't mean that the first criteria didn't predominate.

We know it because the legislature told us, this is the dominant -- this is the dominant criteria.

And that --

Samuel A. Alito, Jr.:

What if the -- I'm sorry. Finish.

Mark E. Elias:

I -- and that's what this -- that's what happened in this instance.

Samuel A. Alito, Jr.:

What if the legislature says, look, we want to follow all the traditional districting, applying all the traditional districting factors.

However, one thing we absolutely do not want is to be held to have violated Section 5 or Section 2 of the Voting Rights Act.

So we have these 12 majority-African-American districts, and we don't want to do anything to them that results in liability under the Voting Rights Act. Is that predominance?

Mark E. Elias:

It is predominance if race was the -- was the controlling factor in -- that could not yield in the drawing of the districts. Now, it may very well be that when the Court then completes its inquiry, there will be a strong basis in evidence that -- that drawing the districts that way was to comply with a good faith understanding of the Voting Rights Act, and then the -- the State wins. In this case, though, what the State did is it started with an --

Samuel A. Alito, Jr.:

I didn't really understand the answer to the question. If the court says -- if the State says, the one thing we absolutely do not want is to be found to violate the -- the Voting Rights Act, that is not -- that -- that is not necessarily predominance, in your view?

Mark E. Elias:

That is not necessarily predominance.

It is when that is -- because there are any number of ways to comply with the Voting Rights Act that do not require race to be the dominant and controlling factor. For example, you -- you have any number of districts -- I would hazard to guess -- and it is only a guess -- a majority of the districts in this country -- that are drawn by legislatures that are majority-minority, where they start with traditional redistricting criteria and the district is over 50 percent or over whatever the -- the applicable threshold is, and they never need to trump the traditional redistricting criteria with race. In this instance, they trumped -- and I use that word --

Stephen G. Breyer:

What -- what is your evidence of that? I mean, look, which I'm sure you've read, in -- in the Alabama Legislative Black Caucus, which I had hopped would end these cases in this Court, which it certainly doesn't seem to have done -- all right? But if you make the comparison, it isn't enough, I don't think, for you to say that they just saw some traditional factors; and they didn't take into account other evidence that they were using race predominantly. Well, if you look at the other evidence on page 1271, you know, the west thing, it was pretty strong evidence.

They added 15,785 new voters; and of those, precisely 12 were white.

Right?

Mark E. Elias:

Right.

Stephen G. Breyer:

Now, is there -- and when you looked at their use of the factors, of the traditional factors, they were pretty irrelevant.

Mark E. Elias:

Right.

Stephen G. Breyer:

It makes a point of that in the opinion, and that -- that that's meant to guide the district judges.

And so what -- what's the equivalent here? What's the equivalent if -- assuming he didn't say exactly the right words, no one can say exactly the right words, what's his mistake?

Mark E. Elias:

His mistake is setting an arbitrary threshold at 55 percent.

Stephen G. Breyer:

No.

What is the evidence that you say would show that, in fact, they did use race? What's your strongest one or two pieces of evidence?

Mark E. Elias:

I think --

Stephen G. Breyer:

You saw the 17 -- 15,785. That's pretty strong.

Mark E. Elias:

I think if you look at District 71 --

Stephen G. Breyer:

Okay.

Mark E. Elias:

Okay.

What you find is this is an inner city -- just to orient to the Court, this is an inner city district at the core of Richmond. And this is a district that had a 46.3 percent BVAP, and because of the 55 percent rule that had been set out, and there's really no dispute, the -- the district court agrees that that was a rule that guided the drawing of districts, all of the districts, as a result of that rule, we -- what you see is a racial gerrymandering.

You see that that district went from 46.3 to 55.3 by essentially raiding every other district around it, essentially the suburbs and the exurbs, raiding those districts and bringing black voters in, notwithstanding the fact that it was a classic crossover district.