The Supreme Court on Monday tackled two racial gerrymander cases in a fresh attempt to determine how race can be taken into consideration when states draw district lines.
The justices heard arguments for more than two hours concerning maps in North Carolina and Virginia. In a sign of the complexity of the cases, the justices did something they don’t usually do: They allowed the arguing attorneys to go on for extended periods of time without interruption.
“This is all,” Justice Samuel Alito said at one point, “very, very complicated.”
As is often the case, Justice Anthony Kennedy could prove to be a critical vote. At one point, he expressed reservation about a lower court opinion that went in favor of the Virginia plans.
Monday’s case represents another example of how the recent presidential election could profoundly impact the future of the Supreme Court. During the campaign, Hillary Clinton stressed the importance of voting rights and vowed to nominate a justice who would work to reverse the impact of Shelby County v. Texas, a 2013 5-4 decision that struck down a key provision of the Voting Rights Act.
But Donald Trump is likely to replace the late Justice Antonin Scalia with a like-minded conservative. If Trump were to get the opportunity to fill a second seat, he could further solidify the Shelby majority.
On Monday, civil rights groups and Democrats came to court to challenge plans they said unnecessarily packed African-Americans into districts with the aim of diluting minority presence in neighboring districts.
Mark Elias, a lawyer challenging the plans who also served as Clinton’s top election lawyer, said the maps were drawn to diminish minority voters’ impact in electing candidates of their choice.
But Paul Clement — a lawyer for the states – defended the plans, arguing that the states find themselves in a bind, often seeking a sweet spot between federal law and constitutional requirements.
On the one hand, the Voting Rights Act requires that the legislature take race into consideration when drawing lines. At the same time, the court has said that the Equal Protection Clause prevents race from being the dominant factor in those decisions absent a compelling justification.
Kennedy’s comments suggested a discomfort with race being used as a tipping point without the proper scrutiny.
“I have a problem with that,” he said at one point.
In 2015, Kennedy voted with his liberal colleagues in a case out of Alabama concerning how districts could be drawn. But he also voted with the majority in Shelby County.
The first case, Bethune Hill v. Virginia State Board of Elections, deals with a Virginia legislative map that was redrawn in 2010 after the census. Twelve districts for the State House of Delegates were drawn to attain a 55% Black Voting Age population. Critics argue that the maps pack African-Americans in the district and dilute their presence in other districts.
A lower court upheld the districts, saying that race did not predominate in 11 of the 12 districts and in the 12th there was a permissible justification to have race predominate.
The second case concerns two federal congressional district maps that were drawn in North Carolina to ensure that each had a Black Voting Age population of 50%.
In that case, a lower court said the maps were unconstitutional.
Allison Riggs, a lawyer for the Southern Coalition for Social Justice, who filed a brief in support of the challengers, rejected any argument that the states are caught between a rock and a hard place.
“The reality is it is not difficult to comply with both the Voting Rights Act and the Constitution,” she said. “All you need to do is avoid racial quotas and look at political realities on the ground in each district.”