Will Bethune-Hill Matter in the Long Run, Given Shelby County?

by Michael Dorf

Yesterday, the SCOTUS decided Bethune-Hill v. Virginia State Bd. of Elections. After a brief summary of the facts and holding, I'll ask whether the case will likely have any long-term impact. The surprisingly liberal 7-1 result rested on the conclusion that Virginia's use of a percentage target of Black voters in drawing an electoral district was narrowly tailored to advancing what the Court assumed was a compelling interest in complying with Section 5 of the Voting Rights Act (VRA). That could be a one-off ruling, because the Supreme Court itself effectively gutted Section 5 in Shelby County v. Holder by invalidating the coverage formula of Section 4 of the VRA. Nonetheless, I tentatively conclude that the case will be important going forward.

After the 2010 census, Virginia redistricted for its state legislature in accordance with a plan that, among other things, required that so-called ability-to-elect-districts--where Black voting strength is sufficient to ensure electoral representation--had roughly 55% Black voting-age population. The 12 such districts were challenged as unconstitutional but the (three-judge) district court upheld the districts. With respect to 11 of the districts, the district court found that race was not the predominant factor in districting (as that term is used in the SCOTUS case law) because the 55% districts did not depart from ordinary districting considerations (such as compactness, contiguity, maintaining political sub-units, etc.). With respect to the twelfth voting district, the district court found that race was the predominant factor, but that the use of the 55% figure was narrowly tailored to comply with the VRA--which, at the time, required pre-clearance of districting changes per Section 5.

The SCOTUS vacated the district court ruling with respect to the 11 districts and affirmed with respect to the 12th. That might sound like 11/12ths of a defeat for protecting minority voting rights, but in fact it was a nearly complete victory. With respect to the 11 districts, the SCOTUS held that race can be a predominant factor even if the appearance of the district does not depart from ordinary districting principles--which seems fair enough. The SCOTUS chose not to reach the question whether the 11 districts were the product of making race a predominant factor, and thus remanded. (Justice Alito would have reached that question and said race was a predominant factor.) Because the SCOTUS did not say whether the 11 districts had resulted from the predominant use of race, it also didn't say whether the state was justified in so using race, but it pretty clearly follows from the SCOTUS affirming the district court on the 12th district--finding that the 55% figure was narrowly tailored to further the assumed compelling interest in complying with the VRA--that on remand the district court should find that the use of race in the other 11 districts also satisfies strict scrutiny. Only Justice Thomas dissented from this aspect of the Court's holding.

To be sure, in writing separately, Justice Alito suggested that the holding of Bethune-Miller might not have much significance going forward. He said that if Virginia had a compelling interest in complying with the VRA, it was with with Section 5, which, following Shelby County, is effectively a dead letter. (In principle, Congress could update the coverage formula of Section 4, but that seems highly unlikely to happen in the medium term).

Justice Kennedy's opinion for the Court in Bethune-Miller (joined in full by Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, and Kagan) at some points says that compliance with Section 5 of the VRA is the assumed compelling interest while at other points saying that compliance with the VRA, simpliciter, is the assumed compelling interest. But whatever the Court said about that, it seems clear that if compliance with Section 5 is a compelling interest, then so is compliance with Section 2 of the VRA--which remains in effect following Shelby County.

Why? Well, for one thing, the Court's prior cases treat compliance with Sections 2 and 5 more or less interchangeably when asking whether compliance with the VRA is a compelling interest. For example, the plurality opinion in Bush v. Vera talked about compliance with Section 2 in exactly the same way that Bethune-Miller talks about compliance with Section 5.  More importantly, the current language of Section 2 pretty clearly could be used to justify measures taken to ensure that redistricting preserves ability-to-elect districts. It provides, in part, that a violation is shown where members of a racial group "have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." Virginia's districting choice at issue in Bethune-Miller could readily be described as aiming at complying with Section 2.

So Bethune-Miller is good news going forward, not just for cases in the pipeline since before Shelby County. However, it remains only relatively small good news for two reasons.

First, the SCOTUS still has never held that compliance with the VRA actually is a compelling interest; once again, the Court merely assumes this to be true.

Second, cases like Bethune-Miller show that the VRA can be used as a shield by legislatures committed to protecting minority voting rights against lawsuits challenging the use of race in districting. They do nothing to revive the VRA as a sword that can be wielded by the Justice Department to challenge the numerous efforts around the country to undermine voting by racial minorities. The elimination of pre-clearance in Shelby County combined with the transition from an Obama administration that was pursuing "opt-in" cases under Section 3 of the VRA to the Trump/Sessions Justice Department means that many shenanigans will go unchecked. (And that prediction likely holds true even in the event that Sessions--or, for that matter Trump--is forced out of office by the results of an investigation into the Kremlin connection).