When Virginia Republicans redrew the state’s House of Delegates map in 2011, they came up with a rule: 12 districts would have a black voting age population of at least 55 percent.
Republicans said they adopted the rule in order to comply with the Voting Rights Act, which requires the state to make sure minority voters could continue to elect candidates of their choosing.
But Republicans didn’t do any analysis to determine why each of those districts needed at least 55 percent. They calculated that the 55 percent threshold was needed in one district and simply took their calculation and applied it across the board. It was a strange calculation because voters in those districts were already electing candidates of their choice with black voting age populations ranging from 46.3 percent to 62.7 percent.
In 2014, voters in the 12 districts sued, saying that lawmakers used the 55 percent calculation to pack black people into those districts and limit their voting power throughout the state. On Tuesday, a federal court in Virginia agreed with the challengers in the case, called Bethune-Hill v. Virginia State Board of Elections. The court ruled 2-1 that 11 of the districts were unconstitutionally racially gerrymandered. (In an earlier decision it approved of the use of race in the one district lawmakers used to come up with the 55 percent threshold.)
Writing for the majority, Judge Barbara Milano Keenan said lawmakers unconstitutionally used race as the predominant factor in drawing the districts and couldn’t explain why the 55 percent threshold was needed to comply with the Voting Rights Act. By using race as the predominant factor without an explanation, lawmakers violated the equal protection guarantee of the 14th Amendment, the court ruled.
“Overwhelming evidence in this case shows that, contrary to this constitutional mandate, the state has sorted voters into districts based on the color of their skin. The legislature made no effort to determine whether the mechanical 55% racial threshold was required to comply with the VRA, and instead arbitrarily applied the same racial mandate to 12 vastly dissimilar districts,” she wrote. “This predominant use of race and disregard of narrow tailoring principles plainly are at odds with the guarantees of the Equal Protection Clause.”
The majority gave lawmakers until Oct. 30 to redraw the districts.
The ruling is significant because it comes as Democrats have made considerable gains on Republicans’ control of the state’s lower chamber. In the November 2017 elections, Democrats narrowed the GOP majority from 66-34 to 51-49. A new map could help Democrats by taking African-American voters out of districts where there are already enough votes to elect Democratic candidates and placing them in more competitive, Republican-leaning ones.
“The case demonstrates that you cannot pack minority voters into districts without Voting Rights Act justification. The Republican attempt to pack as many minority residents into as few districts clearly backfired and was illegal,” said Jeffrey Wice, a fellow with the Rockefeller Institute and a lawyer who worked with Virginia House Democrats when the redistricting plan was passed in 2011.
House Speaker Kirk Cox (R) said Tuesday the state would appeal to the U.S. Supreme Court, which already heard the case once. After a district court initially upheld 11 districts, saying that race was not the predominant factor in drawing them, the Supreme Court sent the case back to the lower court in 2017 to reconsider. In a 6-2 opinion written by Justice Anthony Kennedy, who is retiring from the bench at the end of July, the high court told the judges to look at whether race was the “essential basis” on which the lines were drawn. The lower court on Thursday agreed that it was.