By Wendy Underhill
The U.S. Supreme Court on Monday heard the first of three big redistricting cases this session, Virginia House of Delegates v. Bethune-Hill.
The next two, which come a week later on March 26, will address partisanship in map-drawing and could possibly answer the long-asked question of whether there is a level of partisanship that could be considered unconstitutional. (So far, the court has indicated that there could be such a level but has not found a standard to apply.)
The Virginia case addresses the even longer-standing question of how race plays into redistricting: It must be considered to comply with federal and state civil rights laws, but that consideration can’t predominate. Amy Howe’s analysis of the case in SCOTUSblog (originally published in Howe on the Court), helps sort it out.
The case revolves around 11 districts that were drawn to uniformly have a 55 percent majority African-American voting age population. The legislature argued that this was necessary to satisfy Section 5 of the Voting Rights Act (VRA). Challengers say such uniform standards are not required by the VRA, and as a result, the 55 percent rule adopted by the General Assembly is a predominant factor, which violates the Equal Protection Clause.
In addition to the big question about race as a factor, this case raises a host of other intriguing questions. Here are two:
- Who has the right to defend Virginia’s maps? The state’s solicitor general says his office has the right, not the House of Delegates. The House, of course, sees this differently.
- Does Virginia’s House of Delegates have standing to defend its maps? To have standing, it needs to show an injury—and its position is that it has indeed been injured by the requirement that it redraw maps now. (In fact, at the behest of the lower court, a special master has produced maps that are ready to be used for June’s primary and November’s state election, pending the Supreme Court’s ruling.)
It’s worth noting that the Virginia General Assembly passed a constitutional amendment resolution this spring that would create a commission to draw maps in the future. But it will only go into effect if the same resolution passes in the next session and is approved by voters in November 2020.
While we wait for the rulings on Virginia House of Delegates v. Bethune-Hill and next week’s cases, it’s a good time to study up on redistricting. NCSL is hosting a Redistricting 101 webinar March 26. We will cover the basics, but our experts, Michelle Davis of the Maryland General Assembly’s nonpartisan staff and Nicholas Pharris of Washington state’s secretary of state’s office, will answer questions if they come up.
Better yet, come to NCSL’s Getting Ready to Redistrict seminar, June 20-23 in Providence, R.I. It is the first of five such seminars, each one providing lots of practical and legal preparations.
Wendy Underhill is the director of NCSL’s Elections and Redistricting Program.