Supreme Court's Way Toward a Compromise on Voting Rights

(Bloomberg View) -- In an important decision that's unusual for being almost unanimous, the U.S. Supreme Court on Wednesday clarified the constitutional rule for the design of majority-minority legislative districts, perhaps the single most significant issue in contemporary voting-rights law.

The districting in this case took place under the old rules, before the court struck down a section of the Voting Rights Act. But the decision points the way to the constitutional doctrine of the future: voting-rights law that's more consensual than has been the historic norm.

QuickTake Voting Rights

Going forward, state legislatures will be evaluated more carefully to see whether they have relied on race as the predominant factor in district design. If they have, the courts now have a bit more room to conclude that the racial motive was justified, and not unconstitutional.

The backdrop to the case, Bethune-Hill v. Virginia State Board of Elections, is a set of 12 redistricting decisions taken by the Virginia House of Delegates after the 2010 census. The state set out to achieve its redistricting before the 2012 elections, which means the action took place before the Supreme Court decided the landmark 2013 case of Shelby County v. Holder.

In the Shelby County case, a conservative majority -- including Justice Anthony Kennedy -- struck down Section 5 of the Voting Rights Act of 1964. That provision required states with a history of racial discrimination in voting to “preclear” any redistricting with the Department of Justice.

Preclearance mattered in the Virginia case. The 12 majority-minority districts had all lost some black voters between 2000 and 2010. The Virginia legislature set out to keep those districts majority-minority, and satisfy the Department of Justice under President Barack Obama. To achieve that, the legislature adopted the goal of getting each of the 12 districts to contain a black voting-age population of at least 55 percent.

When voters challenged the new districts, the constitutionality of the new plan went to a special three-member federal district court, as is standard for voting-rights challenges. The court upheld all the districts -- but for different reasons.

In 11 cases, the district court said that the challengers had failed to prove that there was an actual conflict between the districting plan and “traditional redistricting principles.” Thus, it dismissed the challenge to those 11.

The Supreme Court held that this was too high a bar for the challengers to have to cross. In his opinion for the court, Justice Anthony Kennedy wrote that challengers don't necessarily have to show that the voting district is weirdly shaped or otherwise untraditional to prove racial gerrymandering. They just have to show that race was the predominant motive for the redistricting.

Kennedy admitted that most of the time, the way to make that showing would be through evidence of a district that deviates from ordinary shape. He even admitted that the Supreme Court had never found a district to be created for predominately racial reasons in the absence of such design weirdness. But he insisted that a deviation from ordinary district design was not necessary to prove racial predominance.

This ruling  sent the case back to the district court to re-examine the 11 districts. But, crucially, with respect to the 12th and final district the Supreme Court upheld the district court's conclusion.

The lower court had concluded that race had been the predominant motive in forming the 12th district. But it also held that the state legislature had narrowly tailored the design to meet the interest of satisfying Section 5 of the Voting Rights Act by getting preclearance. (In the only dissent filed in the case, Justice Clarence Thomas disagreed with this part of the holding.)

In practice, this part of Kennedy's opinion signals to the district court that it could find that race was the predominant motive in designing the other 11 districts and nevertheless still bless those districts – which were composed using the same goal of 55 percent black voting-age population as the one district that the Supreme Court upheld.

This explains, in part at least, the compromise between liberals and conservatives in the usually divisive area of voting-rights law. For liberals, the opinion means that existing liberal redistricting from before 2013 can be upheld. And it opens the door to the possibility that progressively minded state officials doing redistricting can be given some leeway to pick specific targets of black voters without violating the Constitution.

To the court's conservatives, including Kennedy and Chief Justice John Roberts, the decision pushes lower courts to take a closer look at racially minded districting, focusing on motives. They can tolerate reliance on the 55 percent goal in this case, because after 2013, preclearance can no longer be used by states as an excuse.

There could still very well be a future battle between the liberals and the conservatives over whether such targets remain lawful after 2013. Justice Samuel Alito, in a separate concurrence, hinted as much.

But it's also possible that the two sides are looking toward a more lasting compromise for the post-2013, post-preclearance world. Liberals can live with close assessments of racially motivated redistricting provided there is room for the courts to conclude that it is constitutionally permissible to preserve majority-minority districts. And conservatives -- or at least Kennedy and Roberts -- might be prepared to let majority-minority districts stand in those instances where legislatures adopt them, even without the threat of preclearance.

If that were so, the Supreme Court's history of 5-4 voting rights decisions might be coming to an end.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America's Church-State Problem -- and What We Should Do About It.”

1. The court also held that the lower court's analysis must be at the district level. I won't take you into the weeds on this part of the opinion. You're welcome.

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To contact the editor responsible for this story: Stacey Shick at sshick@bloomberg.net.

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