The U.S. Supreme Court heard arguments Monday in two cases centered on “an issue at the heart of race and politics: drawing legislative districts based on race.”
Black voters in Virginia and North Carolina contended that political maps illegally pack those voters into a small number of districts, eliminating African Americans’ ability to influence results in adjacent contests. Republicans lawmakers who drew the maps say they intended to comply with the Voting Rights Act, which has been read to prohibit eliminating safe districts for minority incumbents, or to harm Democrats for partisan, rather than racial, reasons.
While it is illegal to discriminate on the basis of race, the Supreme Court has never held it unconstitutional to disadvantage voters for partisan reasons. Monday’s cases, as several justices remarked, were difficult to resolve partly because of the political reality that race and partisan preference are strongly aligned.
The two cases, Bethune-Hill v. Virginia State Board of Elections and McCrory v. Harris, were argued separately but by the same attorneys: Paul Clement for Republican state officials defending their maps and Marc Elias for Democrats challenging the maps.
“It is a very tough matter,” observed Justice Stephen Breyer, summarizing the questions with which the justices were grappling today. Federal law permits (and sometimes requires) states to consider race when drawing district lines, to create legislative districts in which a majority of voters are members of a minority group, but at the same time the Constitution bars states from making race the predominant factor when drawing districts. “No one,” Breyer continued, “seems to have a good answer to” the dilemma facing the Supreme Court – how courts should determine when the use of race becomes sufficiently pervasive that it crosses over to become unconstitutional racial gerrymandering, particularly when race correlates closely with political party.
SCOTUS will have an answer, if not a good one, by summer.