Amicus Curiae Brief — Virginia House of Delegates, et al., Appellants v. Golden Bethune-Hill, et al.

Supreme Court briefMar 15, 2019

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No. 18-1134

In The

Supreme Court of the United States

VIRGINIA HOUSE OF DELEGATES,

M. KIRKLAND COX,

Appellants,

GOLDEN BETHUNE-HILL, ET AL.,

Appellees.

On Appeal from the United States District Court

for the Eastern District of Virginia

BRIEF OF AMICUS CURIAE

THE NATIONAL REPUBLICAN REDISTRICTING

TRUST IN SUPPORT OF APPELLANTS

Jason B. Torchinsky

Counsel of Record

Phillip M. Gordon

Holtzman Vogel Josefiak

Torchinsky PLLC

45 N. Hill Dr.

Suite 100

Warrenton, VA 20186

(540) 341-8808

jtorchinsky@hvjt.law

pgordon@hvjt.law

Counsel for Amicus Curiae

LANTAGNE LEGAL PRINTING

801 East Main Street Suite 100 Richmond, Virginia 23219 (800) 847-0477

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... ii

STATEMENT OF INTEREST OF

AMICUS CURIAE....................................................... 1

SUMMARY OF THE ARGUMENT ............................ 2

ARGUMENT ............................................................... 3

Principles of Federalism Mandate

that the States Be Given Some

Leeway in this Area. ...................................... 5

II.

There Is No Clear Standard to Meet

the “Twin Demands” of the

Fourteenth Amendment and the

Voting Rights Act. .......................................... 9

III. The Court Should Adopt the Bush

v.Vera Framework so that States

Have Sufficient Space to Navigate the

“Twin Demands” of the Constitution

and the Voting Rights Act. .......................... 16

CONCLUSION .......................................................... 24

TABLE OF AUTHORITIES

CASES

Abbott v. Perez, 138 S. Ct. 2305 (2018)............. passim

Alabama Legis. Black Caucus v. Alabama,

135 S. Ct. 1257 (2015) ..................................... 4, 19, 20

Beer v. United States, 425 U.S. 130 (1976) .............. 10

Bethune-Hill v. Virginia State Bd. of Elections,

137 S. Ct. 788 (2017) ......................................... passim

Bond v. United States, 564 U.S. 211 (2011) ............... 6

Bush v. Vera, 517 U.S. 952 (1996) .................... passim

Chestnut v. Merrill, No. 2:18-cv-907

(N.D. Ala. 2018) ........................................................... 8

Cooper v. Harris, 137 S. Ct. 1455 (2017) .......... passim

Dwight v. Kemp, No. 1:18-cv-2869

(N.D. Ga. 2018) ............................................................ 8

Easley v. Cromartie, 532 U.S. 234 (2001) ........... 16, 19

Gomillion v. Lightfoot, 364 U.S. 339 (1960) ............. 10

Gregory v. Ashcroft, 501 U.S. 452 (1991) ................... 6

Int'l Shoe Co. v. Washington, 326 U.S. 310 (1945) .... 9

Johnson v. Ardoin, 3:18-cv-625 (M.D. La. 2018) ........ 8

iii

Karcher v. Daggett, 462 U.S. 725 (1983) .................. 13

League of United Latin Am. Citizens v. Perry,

548 U.S. 399 (2006) ................................................... 10

Miller v. Johnson, 515 U.S. 900 (1995) ............ passim

Mobile v. Bolden, 446 U.S. 55 (1980)........................ 13

Reynolds v. Sims, 377 U.S. 533 (1964) ....................... 6

Shaw v. Reno, 509 U.S. 630 (1993)................... passim

Shelby Cnty. v. Holder, 570 U.S. 529 (2013) ........ 6, 13

Thornburg v. Gingles, 478 U.S. 30 (1986) ...... 4, 10, 17

Virginia House of Delegates, et al. v. Bethune-Hill,

No. 18-1134 (U.S. docketed Mar. 1, 2019) .............. 5, 8

Virginia House of Delegates, et al. v. Bethune-Hill,

No. 18-281 (U.S. oral argument scheduled

Mar. 18, 2019) ................................................... 5, 8, 24

Wright v. Rockefeller, 376 U.S. 52 (1964) ................. 10

STATUTES

52 U.S.C.S. § 10301 ..................................................... 4

52 U.S.C.S. § 10304(b) ................................................ 4

OTHER AUTHORITIES

Thomas Merton, Thoughts in Solitude 79 (1999) ...... 4

Nathaniel Persily, Forty Years in the Political

Thicket: Evaluating Judicial Review of the

Redistricting Process Since Baker v. Carr, Brookings,

22-23 ...................................................................... 8, 16

STATEMENT OF INTEREST OF

AMICUS CURIAE

The National Republican Redistricting Trust

(“NRRT”) is the primary organization tasked with

coordinating and collaborating with national, state,

and local groups for the upcoming decennial

reapportionment.1 The NRRT’s mission is to: (1)

ensure redistricting faithfully follows all state,

federal, and constitutional mandates; (2) see that

redistricting comports with traditional districting

criteria to ensure that individual legislators

represent their communities and not political

parties; and (3) ensure that the redistricting process

and the results therefrom make sense to the voters

so that each citizen understands why their

individual districts were drawn in a specific way.

This case implicates the very core of NRRT’s

mission.

1 No counsel for a party authored this brief in whole or in part,

and no counsel or party made a monetary contribution intended

to fund the preparation or submission of this brief. No person

other than Amicus Curiae made a monetary contribution to its

preparation or submission. Counsel for each party consented to

the filing of this brief.

SUMMARY OF THE ARGUMENT

It is clear from the facts that the Virginia

General Assembly sought to use race, not for some

invidious purpose long abhorred by the Constitution

and the American consciousness, but instead to

extend certain voters the rights afforded them by the

Voting Rights Act. If the Voting Rights Act (“the Act”

or “VRA”) is a constitutional use of congressional

power, which this Court has long presumed, then

legislatures should be free to reapportion in

compliance with the Act without fear of unwarranted

judicial interreference through the Act’s per se

application so long as the state followed its own race

neutral criteria in seeking to effectuate the Act’s

ends. Similarly, guidance is desperately needed so

that the lower courts are not tempted to replace a

state’s policy calculus with its own.

First, as this Court has stated time and again,

reapportionment is the job of the states and

therefore the states deserve clear and workable

guidelines in order to meet the competing

requirements of the VRA and the Equal Protection

Clause of the Fourteenth Amendment. Further,

given the impending decennial census and

corresponding reapportionment, the judiciary stands

to be overwhelmed by both racial and VRA claims

should no additional clear guidance be given.

Second, the current racial gerrymandering

standard is unclear and does not afford state

legislatures the guidance or space under the

Fourteenth Amendment and VRA to avoid strict

scrutiny altogether or, should it be necessary to

subordinate traditional districting criteria to racial

considerations, to meet the narrow tailoring

requirements.

Third, the standard enunciated in Bush v. Vera

presents a manageable solution to the competing

demands of the VRA and the Fourteenth

Amendment. It does this through two related but

distinct avenues. First, the framework refocuses the

predominance inquiry to a state’s use, or misuse, of

traditional districting criteria. Second, the standard

further clarifies and solidifies the role traditional

districting criteria play in determining if the state’s

action was narrowly tailored.

Without further guidance or clarification from

the Court, states will enter into the next decennial

reapportionment with no clear standard by which to

judge their legislative enactments in this area. The

only result, just as we have seen this decade, is

ceaseless litigation and a hodgepodge of lower court

decisions where one state’s use of race was

unconstitutional yet another state’s use, even though

factually indistinct, was not. Therefore, the Court

should note probable jurisdiction to give both state

legislatures and the lower courts a clear workable

standard by which to evaluate their responsibilities

under both the Fourteenth Amendment and the

VRA.

ARGUMENT

The competing demands of the Voting Rights Act

and the Fourteenth Amendment have placed state

legislatures in the classic no-win scenario when it

comes to reapportionment. Section 2 of the VRA

mandates

that

sufficiently

large

and

geographically compact minority group that is

politically cohesive and is in danger of being

consistently outvoted by a majority group should be

able to elect the candidate of their choice. See

Thornburg v. Gingles, 478 U.S. 30 (1986); see also 52

U.S.C.S § 10301. Section 5 mandates that a covered

jurisdiction “demonstrate that an electoral change,

such as redistricting, would not bring about

retrogression in respect to racial minorities’ ability

to elect their preferred candidates of choice.” See

Alabama Legis. Black Caucus v. Alabama, 135 S. Ct.

1257, 1263 (2015); see also 52 U.S.C.S. § 10304(b).2

While, at the same time, the Fourteenth Amendment

mandates that, in the reapportionment context,

racial considerations cannot predominate. See Miller

v. Johnson, 515 U.S. 900, 916 (1995).

The

multitudinous twists and turns in this area of the

law calls to mind a Trappist monk’s prayer:

My Lord God, I have no idea where I

am going. I do not see the road ahead of

me. I cannot know for certain where it

will end. Nor do I really know myself,

and the fact that I am following your

will does not mean that I am actually

doing so. But I believe that the desire to

please you does in fact please you.

Thomas Merton, Thoughts in Solitude 79 (1999).

Such is the situation facing state legislatures when

The coverage formula under Section 4(b) was declared

unconstitutional after Virginia’s reapportionment plan was

both passed and precleared. As such, this brief will proceed

under the same assumption Virginia was forced to make when

it enacted its apportionment plan, that preclearance under

Section 5 is required.

they take up the constitutionally mandated task of

decennial reapportionment. And, more to the point,

such was the desire of the Virginia General

Assembly when they sought to design districts that

complied with the competing interests of the VRA

and the Fourteenth Amendment.

Be that as it may, the questions presented to this

Court in both this case, Virginia House of Delegates,

et al. v. Bethune-Hill, No. 18-1134 (U.S. docketed

Mar. 1, 2019) (Bethune-Hill III), and its companion

case, Virginia House of Delegates, et al. v. BethuneHill, No. 18-281 (U.S. oral argument scheduled Mar.

18, 2019) (Bethune-Hill II), begs the question if there

is a better way forward; a way that addresses the

Court’s concerns that racial classifications not play a

predominant role in the state’s districting decisions

while at the same time acknowledging that the state

must, under federal law, take race into account at

least enough to be compliant with Sections 2 and 5 of

the VRA.

Principles of Federalism Mandate that

the States Be Given Some Leeway in

this Area.

“[F]undamental concerns of federalism mandate

that states be given some leeway so that they are not

‘trapped between the competing hazards of liability.’”

Bush v. Vera, 517 U.S. 952, 977 (1996) (O’Connor, J.,

plurality op.). “[F]ederalism and the slim judicial

competence to draw district lines weigh heavily

against judicial intervention in apportionment

decisions; as a rule, the task should remain within

the domain of state legislatures.” See Miller, 515

U.S. at 934-35 (Ginsburg., J., dissenting); see also id.

at 915; Reynolds v. Sims, 377 U.S. 533, 586, (1964)

(“Legislative reapportionment is primarily a matter

for legislative consideration and determination . . .

.”). But for the Supremacy Clause, the “allocation of

powers in our federal system preserves the integrity,

dignity, and residual sovereignty of the States.”

Shelby Cnty. v. Holder, 570 U.S. 529, 543 (2013)

(quoting Bond v. United States, 564 U.S. 211, 221

(2011)). “But the federal balance ‘is not just an end

in itself: Rather, federalism secures to citizens the

liberties that derive from the diffusion of sovereign

power.’” Id. at 543 (quoting Bond, 564 U.S. at 221

(internal quotation marks omitted)). This is because

the Framers’ intent was for the States to have “the

power to regulate elections” under the Tenth

Amendment. Id. (quoting Gregory v. Ashcroft, 501

U.S. 452, 461-62 (1991)).

The current state of the law, as members of the

Court have noted, creates a “perilous” situation for

state legislatures. See, e.g., Miller, 515 U.S. at 948

(Ginsburg, J., dissenting); see also Abbott v. Perez,

138 S. Ct. 2305, 2315 (2018) (referring to the

competing demands of the VRA and Fourteenth

Amendment as a “legal obstacle course”). For

instance, the Miller dissent maintained that the

majority had created a situation in which a state

legislature can “[n]o longer . . . avoid judicial

oversight by giving . . . genuine and measurable

consideration to traditional districting practices.” Id.

at 944 (Ginsburg, J., dissenting). The dissent goes on

to explain the “perilous” situation state legislatures

are placed in without the anchor of traditional

districting practices “to provide a safe harbor.” Id. at

948. The dissent’s overarching concern3 was that

“[o]nly after litigation—under either the Voting

Rights Act, the Court’s new Miller standard, or

both—will States now be assured that plans

conscious of race are safe.” Id. at 948.

Over the past 24 years, the Miller dissent—

despite Justice O’Connor’s view to the contrary—has

proven to be the more prescient view of events. See,

e.g., Vera, 517 U.S. at 1045-46 (“The result of this

failure to provide a practical standard for

distinguishing between lawful and unlawful use of

race has not only been inevitable confusion in state

houses and courthouses, but a consequent shift in

responsibility for setting district boundaries from

state legislatures . . . to the courts . . . .”) (Souter, J.,

Ginsburg, J., and Breyer, J., dissenting); Abbott, 138

S. Ct. at 2315 (“Since the Equal Protection Clause

restricts consideration of race and the VRA demands

consideration of race, a legislature attempting to

produce a lawful districting plan is vulnerable to

‘competing hazards of liability.’” (quoting Vera, 517

U.S. at 977). Interestingly, this was not the case for

3 Interestingly, Justice O’Connor—who presented the fifth vote

in Miller—did not share the dissent’s concern because, as her

concurrence notes, the Miller majority did not substantively

change the standard articulated in Shaw I. See Miller, 515 U.S.

at 928-29 (“I understand the threshold standard the Court

adopts—'that the legislature subordinated traditional raceneutral districting principles . . . to racial considerations,’—to

be a demanding one. To invoke strict scrutiny, a plaintiff must

show that the State has relied on race in substantial disregard

of customary and traditional districting practices. Those

practices provide a crucial frame of reference and therefore

constitute a significant governing principle in cases of this

kind.” (internal citation omitted)).

the vast majority of the 2000 redistricting cycle, even

though most commentators presumed that the Shaw

standard would lead to endless litigation. See

Nathaniel Persily, Forty Years in the Political

Thicket: Evaluating Judicial Review of the

Redistricting Process Since Baker v. Carr, Brookings,

22-23, (hereinafter, Persily)4. Professor Persily

referred to this phenomenon as the “dog [that] didn’t

bark.” Id. at 23. The reason the “dog didn’t bark” is

that the states assumed that traditional districting

criteria—i.e.

avoiding

“bizarre”

shapes—was

necessary to avoiding liability under Shaw. Id.

Furthermore, “[t]he Shaw standard, despite its

many ambiguities, also turned out not to be as

difficult to apply.” Id.

The competing and conflicting decisions of this

decade however, portend a large influx of race based

redistricting litigation in the next decade. Just

recently, plaintiffs brought suit in three states

(Georgia, Alabama, and Louisiana) alleging VRA

violations seven years after the last decennial

reapportionment. See Chestnut v. Merrill, No. 2:18cv-907 (N.D. Ala. 2018); Dwight v. Kemp, No. 1:18cv-2869 (N.D. Ga. 2018); Johnson v. Ardoin, 3:18-cv625 (M.D. La. 2018). Other suits that were brought

much earlier on in the decade are either still

ongoing, see Bethune-Hill II, No. 18-281; BethuneHill III, No. 18-1134, or only recently reached final

decisions years after they were originally

implemented. See, e.g., Abbott, 138 S. Ct. at 2313-14.

As these cases illustrate, states will inevitably be

subjected to drawn out and expensive litigation with

4 https://www.brookings.edu/wp-content/uploads/2012/04/crc_

Persily.pdf

almost assured liability under the VRA, on the one

hand, or the Equal Protection Clause, on the other.

To place states in this position is to “offend” both

principles of federalism and “traditional notions of

fair play and substantial justice.” See Int’l Shoe Co.

v. Washington, 326 U.S. 310, 315 (1945); see also

Miller, 515 U.S. at 934-35 (Ginsburg., J., dissenting).

Because “[d]istrict lines are drawn to accommodate a

myriad of factors—geographic, economic, historical,

and political—and state legislatures, as arenas of

compromise and electoral accountability, are best

positioned to mediate competing claims; courts, with

a mandate to adjudicate, are ill equipped for the

task.” See id. at 936 (Ginsburg, J., dissenting). As

such, this Court should further clarify its precedents

to give the legal guidance necessary to allow state

legislatures the proper freedom to operate our

federalist scheme.

II.

There Is No Clear Standard to Meet the

“Twin Demands” of the Fourteenth

Amendment and the Voting Rights Act.

The Court has been adamant that both the

“States and lower courts are entitled to more definite

guidance as they toil with the twin demands of the

Fourteenth Amendment and the VRA.” Bush v. Vera,

517 U.S. 952, 990 (1996) (O’Connor, J., concurring)

(alteration omitted); see also id. at 1045-46 (Souter,

J., Ginsburg, J. and Breyer, J., dissenting); Miller,

515 U.S. at 934 (Ginsburg, J., dissenting). And toil

they have. On the eve of the next decennial

reapportionment—more than two decades after

Justice O’Connor squarely addressed the issue—

there is no clear standard for the states or the courts

to comply with the dictates of both the VRA and the

Fourteenth Amendment. See Vera, 517 U.S. at 990;

see also Abbott, 138 S. Ct. 2305. The history of this

Court’s jurisprudence since Shaw I has created little,

if any, room for a state legislature to act in good

faith while conducting the “most vital of local

functions”: reapportionment.5 See Miller, 515 U.S. at

915.

Recently, the Court adopted a “two-step

analysis” to determine if there has been an

impermissible racial gerrymander. See Cooper v.

Harris, 137 S. Ct. 1455, 1464-65 (2017). “First, the

plaintiff must prove that race was the predominant

factor motivating the legislature’s decision” through

the showing that the legislature “subordinated”

traditional

districting

factors

“racial

considerations.”6 Id. Second, upon a showing of

predominance the burden shifts to the state to show

that the racial considerations were narrowly tailored

to further a compelling interest. Id. at 1464. One

such interest is presumed to be compliance with the

5 The history of jurisprudence in this area certainly predates

Shaw v. Reno, 509 U.S. 630 (1993) (Shaw I). See, e.g.,

Gomillion v. Lightfoot, 364 U.S. 339, 341 (1960); Wright v.

Rockefeller, 376 U.S. 52 (1964). However, the Shaw line of

cases represent a clear starting point in this Court’s

jurisprudence on the relationship between both its racial

gerrymandering cases, see e.g., Shaw I, 509 U.S. 630 (1993),

and their unique interplay with the Section 2, see, e.g.,

Thornburg v. Gingles, 478 U.S. 30 (1986); League of United

Latin Am. Citizens v. Perry, 548 U.S. 399 (2006), and Section 5,

see e.g., Beer v. United States, 425 U.S. 130 (1976), of the VRA.

As is discussed in depth infra, this step in the analysis is

where the proverbial rubber meets the road and where the

states are in desperate need of additional space to draft

compliant districting plans. See infra at 12-16.

VRA. Id. However, simply invoking the Act is not

enough, a “State must establish that it had ‘good

reasons’ to think that it would transgress the Act if

it did not draw race-based district lines.” Id. It is

only in application of the “’good reasons’” standard

[that] gives States ‘breathing room’ to adopt

reasonable compliance measures that may prove, in

perfect hindsight, not to have been needed.” Id.

(citing Bethune-Hill v. Virginia State Bd. of

Elections, 137 S. Ct. 788 (2017) (Bethune-Hill I)).

The problem with this analysis is not that it is

categorically unsound, rather it is simply

incomplete. The problem facing the States is not

that, once strict scrutiny applies, compliance with

the VRA may serve as a compelling interest. The

problem is that, in practice, simply seeking to

comply with the VRA subjects states to strict

scrutiny in the first instance.

Currently there exists no “safe harbor”

articulated by the Court that will reasonably ensure

that any state’s reapportionment is not subjected to

strict scrutiny for simply seeking to comply with the

mandates of the VRA. See Miller, 515 U.S. at 949

(Ginsburg, J., dissenting). “The result of this failure

to provide a practical standard for distinguishing

between lawful and unlawful use of race has not only

been inevitable confusion in state houses and

courthouses, but a consequent shift in responsibility

for setting district boundaries from state legislatures

. . . to the courts . . . .” Vera, 517 U.S. at 1045-46

(Souter, J., Ginsburg, J. and Breyer, J., dissenting).

The history of racial gerrymandering claims sheds

some light as to how the problem arose and presents

a possible way forward.

a. The

Purpose

Traditional

District

Criteria

the

Predominance Analysis Is to Keep

Voting Rights Act Compliant Plans

from Being Subject to Strict

Scrutiny.

The Court recognized early on that a judicial

rule that subjected the states to strict scrutiny

simply for being “race conscious” was not

manageable because it is expected that legislators

will know the demographics of their states. See, e.g.,

Shaw I, 509 U.S. at 646. For the Shaw I court, it was

the shape of the district lines themselves that was of

paramount importance, not for their own sake, “but

because they are objective factors that may serve to

defeat a claim that a district has been

gerrymandered on racial lines.” Id. at 647 (“Put

differently, we believe that reapportionment is one

area in which appearances do matter.”). Therefore,

the initial standard articulated in Shaw I was

simply that “district lines obviously drawn for the

purpose of separating voters by race require careful

scrutiny under the Equal Protection Clause

regardless of the motivations underlying their

adoption”, id. at 645 (emphasis in original), unless

the “ostensibly neutral” district lines are instead

merely an “obvious pretext for racial discrimination.”

Id. at 643-44. If traditional districting criteria are

not met or compliance with the criteria serve merely

as a pretext for an invidious purpose then, and only

then, should strict scrutiny apply.

The resulting complexity and confusion arose,

not as a direct result of the rule articulated in Shaw

I, but instead in its apparent contradiction with the

dictates of the VRA. The Act requires some amount

of race consciousness when legislatures draw

districts.7 See, e.g., Miller, 515 U.S. at 935

(Ginsburg, J., dissenting) (“[T]o meet statutory

requirements, state legislatures must sometimes

consider race as a factor highly relevant to the

drawing of district lines.”). Section 2 of the VRA

prohibits vote dilution, which is the creation of a

“particular voting scheme as a purposeful device ‘to

minimize or cancel out the voting potential of racial

or ethnic minorities.’” Miller, 515 U.S. at 911

(quoting Mobile v. Bolden, 446 U.S. 55, 66 (1980)).

Similarly, previous to this Court’s decision in Shelby

Cnty. v. Holder, 570 U.S. 529, 549 (2013), many

states, including Virginia, were covered jurisdictions

subject to section 4(b)’s coverage formula. Covered

jurisdictions were required to be “precleared” by the

Department of Justice to avoid retrogression under

Section 5 of the Act, which prohibits “those

redistricting plans that would have the purpose or

effect of worsening the position of minority groups.”

Id. Avoiding retrogression and vote dilution

effectively mandate that legislatures take per se

racial factors and information into account when

drawing districts. See generally Abbott, 138 S. Ct. at

2315 (noting that “the VRA demands the

consideration of race.”). The fundamental question

then became, at what point is strict scrutiny applied

A standard is crucial in this area of the law so that “[o]ne

need not use Justice Stewart’s classic definition of obscenity—‘I

know it when I see it’—as an ultimate standard . . . .” Shaw I,

509 U.S. at 647 (quoting Karcher v. Daggett, 462 U.S. 725, 755

(1983)). The confusion surrounding any standard in this area

further illustrates that a judicial “fix” to this issue ought to be

legal and not factual in nature.

in racial gerrymandering claims. In other words,

how much use of race is too much?

The Court in Miller was squarely presented with

the conflicting demands of the Fourteenth

Amendment and the VRA. To address these

competing demands the Miller Court, in line with

Shaw I, placed the burden on plaintiffs to prove that

race predominated in the legislature’s decision

making. Miller, 515 U.S. at 916. To make a showing

of predominance “a plaintiff must prove that the

legislature subordinated traditional race-neutral

districting principles . . . to racial considerations.” Id.

The Miller Court, however, created confusion by

apparently—as long as one assumes that Justice

O’Connor’s concurrence does not control—lessening

the importance of traditional districting criteria to

the threshold question of whether strict scrutiny

applies in the first instance. See Miller, 515 U.S. at

913. For example, the Miller Court attempted to

“make clear that parties alleging that a State has

assigned voters on the basis of race are neither

confined in their proof to evidence regarding the

districts geometry and makeup nor required to make

a threshold showing of bizarreness.” Id. at 915; see

also Bethune-Hill I, 137 S. Ct. at 799 (“[A] conflict of

inconsistency between the enacted plan and

traditional redistricting criteria is not a threshold

requirement or mandatory precondition” for proving

a racial gerrymandering claim.).

The key question created in Miller—a question

that remains unresolved to this day—is the precise

role traditional districting criteria plays in the

predominance analysis. The caselaw is rife with the

following two apparently contradictory positions: (1)

to satisfy predominance a plaintiff, “must prove that

the legislature subordinated traditional race-neutral

districting principles to racial considerations,”

Miller, 515 U.S. at 797; and (2) “Bizarreness”—i.e.

non-compliance with traditional districting criteria—

is merely “persuasive circumstantial evidence that

race for its own sake . . . was the legislature’s

dominant rationale,” id. at 913. If the threshold

question is “subordination” of traditional districting

criteria, then one would think that traditional

districting criteria should serve as a threshold

consideration and not merely “circumstantial

evidence.” The modern case law is of no help in this

regard. See, e.g., Bethune-Hill I, 137 S. Ct. 797;

Cooper, 137 S. Ct. at 1464-65.

The Court in Abbott v. Perez appeared to

recognize the unenviable position in which the case

law has placed the states. “Redistricting is never

easy” and it is “especially complicated” when a State

is required to achieve population balance, comply

with state law, and balance “complex . . .

requirements regarding the consideration of race.”

Abbott, 138 S. Ct. at 2314. While “[t]he Equal

Protection Clause forbids racial gerrymandering

[and] intentional ‘vote dilution’ . . . its application is

complicated” by the mandates of the Section 2 and

Section 5 of the VRA. Id. The Act “pulls in the

opposite direction” of the Equal Protection Clause by

“insist[ing] that districts be created precisely

because of race.” Id. This tension makes states

“vulnerable to ‘competing hazards of liability.’” Id. at

2315. The Abbott Court considered the problem

serious enough to remark that compliance in this

area is a “legal obstacle course.” In fact, as shown

supra, this may be an understatement. The Abbott

Court did not directly address the application of

traditional districting criteria as a means of avoiding

the application of strict scrutiny. However, as

discussed infra the Court’s “good faith” analysis, and

the

coordinate

presumption

afforded

state

legislatures, presents an opportunity that fits neatly

within the compliance framework articulated in

Vera. As the Court has certainly identified that

there is a problem, the question remains as to the

proper solution.

III.

The Court Should Adopt the Bush v.

Vera Framework so that States Have

Sufficient Space to Navigate the

“Twin Demands” of the Constitution

and the Voting Rights Act.

The framework8 enunciated in Bush v. Vera

sought to meet the “twin demands” placed upon the

states by the competing interests of the Fourteenth

Amendment and the VRA. Vera, 517 U.S. 952, 992

(O’Connor, J., concurring). First, as long as

traditional

districting

criteria

are

not

“subordinate[d] . . . to the use of race for its own sake

and not as a proxy, States may intentionally create

majority-minority districts, and may otherwise take

8 It is important to note that Justice O’Connor maintained that

this framework governed the plurality’s decision, see Vera, 517

U.S. at 993 (“Today’s decision . . . present[s] a workable

framework for the achievement of these twin goals.”), and was

simply an extension of her view of the case law in Shaw I and

Miller. See Miller, 515 U.S. at 928-29. In fact, Justice O’Connor

understood that each decision in which she was on the majority

comported itself with this framework. See, e.g., Easley v.

Cromartie, 532 U.S. 234, 253-54 (2001) (Cromartie II). This is

an understanding the states also seemed to hold. See Persily at

22-23.

race into consideration, without coming under strict

scrutiny.” Id. at 993. Second9, the “state[s] interest

in avoiding liability under VRA § 2 is compelling.”

Id. Third, the state action is narrowly tailored if the

state pursued its compelling interest under the VRA

by creating a district that “’substantially addresses’

the potential liability and does not deviate

substantially from a hypothetically court-drawn”

district. Id. (internal citation omitted). Finally,

“districts that . . . neglect traditional districting

principles and deviate substantially from the

hypothetical court-drawn district, for predominantly

racial reasons, are unconstitutional.” Id. (emphasis

in original).

This framework coincides with this Court’s

precedents,

both

before

Vera,

and

after.

Furthermore, the framework allows the states the

space needed to create districts that will not

automatically be held up in litigation over the next

decade.

a. Compliance

with

Traditional

Districting Criteria Should Be

Both

Sword

and

Shield

for

Legislatures

the

Reapportionment Context

As discussed supra, one of the more hotly

contested issues in the Shaw line of cases is the

precise role that traditional districting criteria

should play in a court’s racial gerrymandering

9 The second element of the framework in Justice O’Connor’s

original formulation simply restates the test for a Section 2

violation under Gingles, which is not in serious dispute. See,

e.g., Vera, 515 U.S. at 993-94.

analysis. In order for States to have the room to

properly legislate in this area, the Court should

extend its precedents to clarify that traditional

districting criteria are the measure of racial

gerrymandering claims, both to preempt the

application of strict scrutiny and then, should race

predominate, prove narrow tailoring. As such,

traditional districting criteria should serve as (1) a

“shield” to prevent the application of strict scrutiny

to legislative action that seeks to comply—through

the use of traditional districting criteria and not as a

proxy—with the VRA, and (2) a “sword” to defeat a

claim should strict scrutiny apply. This approach is

in keeping with this Court’s precedents in this area.

i. If the Voting Rights Act is a

Constitutional

Use

Congressional

Power

then

Compliance

with

the

Act

Cannot, Without More, Trigger

Strict Scrutiny.

As a threshold matter, the constitutionality of

Sections 2 and 5 of the VRA as applied to

redistricting have been presumed by the Court. See,

e.g., Miller, 915 U.S. at 921; but see Cooper, 137 S.

Ct. at 1485-86 (Thomas, J., concurring). As long as

achieving the ends of the Act remains presumptively

constitutional, then so to should the means of

achieving those ends—the use of race in order to

comply with the Act’s mandates—be presumptively

constitutional. The framework, unrefuted by this

Court, allows for an elegant and clear solution to

prevent the possible application of strict scrutiny to

nearly every case where compliance with the Act is a

legislative goal.

“[S]o long as they do not subordinate traditional

districting criteria to the use of race for its own sake

or as a proxy, States may intentionally create

majority-minority districts, and may otherwise take

race into consideration, without coming under strict

scrutiny.” Vera, 517 U.S. at 943 (O’Connor, J.,

concurring). There are effectively two operative

clauses to this part of the framework. First, is the

universally

accepted

admonition

against

“subordinat[ing] traditional districting criteria” to

the use of race for its own sake. See, e.g., Miller, 515

U.S. at 916; Shaw II, 517 U.S. at 906; Vera, 517 U.S.

at 958; Cromartie II, 532 U.S. at 241; Alabama

Legis. Black Caucus v. Alabama, 135 S. Ct. at 1270;

Bethune-Hill I, 137 S. Ct. at 797; Cooper, 137 S. Ct.

at 1463. Second, is the less featured, yet no less

applicable clause that “traditional districting criteria

[may not be used] as a proxy” to further illegitimate

race-based ends. Vera, 517 U.S. at 943. These two

statements combined do no more and no less than

outline the evidence that a plaintiff must present to

rebut the presumption that race did not predominate

the states’ districting process.

No Court has argued for a rule where traditional

districting criteria—that is to say the district shapes

themselves—ends any inquiry into the legislative

enactment. See Miller, 515 U.S. at 913 (“Our . . .

holding in Shaw did not erect an artificial rule . . .

.”). Confusion has arisen at a level much more basic,

and much more fundamental, which is that a State’s

good faith attempt at compliance with the VRA is

neither “the use of race for its own sake” nor is it “a

proxy.” See Vera, 517 U.S. at 943. This is both a

logical extension of the framework presented in Vera

and the presumptive constitutionality of the VRA as

applied to reapportionment.

Simply put, the predominance inquiry is not

conducted unless there is evidence that race for its

own sake—that is the use of race not in pursuit of

VRA compliance—or as a proxy, was used to draw

district lines. See id. at 943; see also Shaw II, 517

U.S. at 931 (Stevens, J. and Ginsburg, J., dissenting)

(“Indeed the principal opinion in Bush v. Vera . . .

makes clear that the deliberate consideration of race

does not in and of itself invite constitutional

suspicion” and therefore “our precedents do not

require the application of strict scrutiny.” (emphasis

added)). In other words, if traditional districting

criteria were complied with to the extent necessary

to comply with the VRA, race for its own sake did not

predominate the analysis. See Alabama, 135 S. Ct.

at 1267 (“[P]rioritizing mechanical racial targets

above all other districting criteria” is evidence of the

use of race for its own sake or as a proxy (emphasis

added)). This allows for the sensitivity that a court

must treat the “complex interplay of forces that

enter a legislature’s redistricting calculus.” Abbott,

138 S. Ct. at 2324. The Court in Abbott discussed

this idea in more general terms.

“In assessing the sufficiency of a challenge to a

districting plan, a court must be sensitive to the

complex interplay of forces that enter a legislature’s

redistricting calculus. And the good faith of the state

legislature must be presumed.” Abbott, 138 S. Ct. at

2324 (citing Miller, 515 U.S. at 915) (internal

quotations, alterations, and citations omitted). The

presumption of legislative good faith fits neatly

within the Vera framework because they are

effectively saying the same thing. A state legislature

may in good faith presume, as it must, that VRA

compliance is required when drawing district lines.

Insofar as that presumption is intact, the

presumption extends to whatever subordination of

traditional districting criteria was required to

achieve compliance with the Act. See Miller, 515 U.S.

at 915 (Although race-based decision making is

inherently suspect, until a claimant makes a

showing sufficient to support that allegation the good

faith of a state legislature must be presumed.”

(emphasis added)); see also id. at 928 (O’Connor, J.,

concurring).

The flip side of this is, of course, that a court

must similarly afford the state this same

presumption. Frankly, this is really no different than

the burden shifting that must take place under a

court’s predominance analysis. Only after a plaintiff

rebuts the presumption of legislative good faith,

through evidence of improper subordination, does

the burden shift to the legislature to prove narrow

tailoring. See Miller, 515 U.S. at 928 (“I understand

the threshold standard the Court adopts . . . to be a

demanding one. To invoke strict scrutiny, a plaintiff

must show that the State has relied on race in

substantial disregard of customary and traditional

districting practices.”).

The Court’s repeated emphasis on VRA

compliance vis-à-vis narrow tailoring has created the

impression—justified or not—that it is impossible for

a state to draw districts in a way that differs from its

traditional districting criteria in pursuit of the

compliance with the Act. This is an impression that

should be clarified for the benefit of state

legislatures heading into the next decennial

reapportionment. To do otherwise is to invite the

unending litigation. See supra at 5-16.

ii. If

Racial

Considerations

Predominated, a State has a

Compelling

Interest

Compliance with the Voting

Rights Act.

If a state “creat[es] a district that ‘substantially

addresses’ the potential liability, and does not

deviate substantially from a hypothetical courtdrawn10 . . . district for predominantly racial

reasons, its districting plan will be deemed narrowly

tailored.” Vera, 517 U.S. at 995. Otherwise, districts

that are “bizarrely shaped . . . and that otherwise

neglect traditional districting principles . . . for

predominantly racial reasons, are unconstitutional.”

Id. (emphasis in original). The evolution of this

standard generally tracks the Vera framework. “In

an effort to harmonize” the conflicting demands of

the VRA and the Equal Protection Clause the Court

has “assumed that compliance with the VRA may

justify the consideration of race” that is compliance

“with the VRA is a compelling state interest.” Abbott,

138 S. Ct. at 2315. So long as there are “good reasons

for believing” that the “State’s consideration of race

in making a districting decision” was necessary, that

decision is narrowly tailored.” Id.

The difference between the analysis under

predominance and under strict scrutiny is simply

one of degree. “Only if traditional districting criteria

The existence of a “hypothetical court-drawn” plan is not

essential except that it allows the courts the benefit of an

“exemplar” to compare to the legislative enactment.

are neglected and that neglect is predominantly due

to the misuse of race does strict scrutiny apply.”

Vera, 517 U.S. at 993. Therefore, a legislature may

neglect traditional districting criteria and “misuse”

race yet still survive strict scrutiny if the following

are true: (1) “a State has a strong basis in evidence

for concluding that” the VRA required the race-based

decision; (2) the state created a district that

“’substantially addresses’ the potential liability”; and

(3) there is no substantial deviation from a court

drawn plan for “predominantly racial reasons.” Vera,

515 U.S. at 994 (emphasis in original). Only if each

of the previous elements are met can a district

survive strict scrutiny.

This is an analysis all too familiar to the courts

because of the drift in attention from traditional

districting criteria in the predominance analysis to

its application in the narrow tailoring analysis.

Compare id. at 995 and Miller, 515 U.S. at 915-916

with Abbott, 138 S. Ct. at 2315 and Bethune-Hill I,

580 U.S. at 797 and Cooper, 137 S. Ct. at 1464.

Effectively, the Vera framework resets the proper

emphasis of the inquiry, preventing the vast

majority of state apportionment plans from being

subject to strict scrutiny due to the legitimate use of

race necessitated by VRA compliance. The flip side is

that once strict scrutiny applies—once traditional

districting criteria are subordinated in a way not

required by the VRA—the state has a significantly

stiffer burden to maintain.

CONCLUSION

For the aforementioned reasons, this Court

should: (1) summarily reverse the district court on

the merits in, see Bethune-Hill II, No. 18-281; (2)

summarily reverse on the question of remedy here;

or (3) note probable jurisdiction.

Respectfully submitted,