College of William & Mary Law School William & Mary Law School Scholarship Repository Supreme Court Preview Conferences, Events, and Lectures 2016 Section 7: Immigration Law Institute of Bill of Rights Law at the William & Mary Law School Repository Citation Institute of Bill of Rights Law at the William & Mary Law School, "Section 7: Immigration Law" (2016). Supreme Court Preview. 260. https://scholarship.law.wm.edu/preview/260 Copyright c 2016 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/preview VII. Election Law In This Section: New Case: 15-680 Bethune-Hill v. Virginia State Board of Elections p. 377 Synopsis and Questions Presented p. 377 “SUPREME COURT WILL WEIGH IN ON WHETHER VA. DISTRICTS ARE RACIALLY p. 435. GERRYMANDERED” Robert Barnes & Laura Vozzella “HOW RACIAL GERRYMANDERING DEPRIVES BLACK PEOPLE OF POLITICAL POWER” p. 438p Kim Soffen . “COURT REOPENS RACE AND DEATH PENALTY ISSUES” p. 441p. Lyle Denniston “VIRGINIA HOUSE DISTRICTS UPHELD” p. 443p. Travis Fain New Case: 15-1262 McCrory v. Harris p. 446 Synopsis and Questions Presented p. 447 “SUPREME COURT TO REVIEW WHETHER NORTH CAROLINA RELIED TOO p. 478 HEAVILY ON RACE IN REDISTRICTING” Jonathan Drew “NORTH CAROLINA REDISTRICTING DELAY DENIED” p. 480 Lyle Denniston “NORTH CAROLINA'S CONGRESSIONAL PRIMARIES ARE A MESS BECAUSE p. 482 OF THESE MAPS” Tom Bullock Looking Ahead: Voter Identification p. 484 “SUPREME COURT BLOCKS NORTH CAROLINA FROM RESTORING STRICT p. 485 VOTING LAW” Adam Liptak “ELECTION LITIGATION 2016: WHERE THINGS STAND” p. 488 Rick Hasen “AS NOVEMBER APPROACHES, COURTS DEAL SERIES OF BLOWS TO VOTER p. 490 ID LAWS” Camila Domonoske “APPEALS COURT STRIKES DOWN TEXAS VOTER ID LAW” p. 494 Richard Wolf “APPEALS COURT UPHOLDS WISCONSIN VOTER ID RULINGS” p. 496 Associated Press “APPEALS COURT STRIKES DOWN NORTH CAROLINA’S VOTER-ID LAW” p. 497 Robert Barnes and Ann E. Marimow “TEXAS TO APPEAL VOTER ID RULING TO SUPREME COURT” p. 501 Reid Wilson “NORTH CAROLINA ASKS SUPREME COURT TO REINSTATE VOTER ID LAW” p. 502 Josh Gerstein Bethune-Hill v. Virginia State Board of Elections 15-680 Ruling Below: Bethune-Hill v. Virginia State Bd. of Elections, 141 F. Supp. 3d 505 (E.D. Va. 2015) The plaintiffs challenged the constitutionality of twelve different House of Delegates districts in Virginia, on the grounds that they were unlawfully racially gerrymandered, violating the Equal Protection Amendment. The District Court held that the use of the 55% black voting-age population floor did not satisfy the requirement of racial predominance in the drawing of the district and did not trigger strict scrutiny as a result. Thus, the holding stated that the plaintiffs failed to show that race was the predominant factor in eleven of the twelve districts. The holding also stated that, although race was the predominant factor in the twelfth district, it was narrowly tailored, designed to comply with federal anti-discrimination law. Question Presented: Whether the use of race must result in “actual conflict” with traditional districting criteria for race to be considered predominant; Whether the use of a black population voting floor should have amounted to racial predominance and triggered strict scrutiny; Whether the court below erred by disregarding the admitted use of race in drawing districts in favor of examining circumstantial evidence; Whether racial motivations must outweigh all other criteria considered in order for race to be considered predominant; Whether the use of race in drawing House District 75 was narrowly tailored to serve a compelling government interest. Golden BETHUNE–HILL, Plaintiffs, v. VIRGINIA STATE BOARD OF ELECTIONS, et al., Defendants.. United States District Court, Eastern District of Virginia Decided on October 22, 2015 [Excerpt; some citations and footnotes omitted] 377 ROBERT E. PAYNE, Senior District Judge: In the Memorandum Opinion that follows, the Court will review the procedural This case challenges the constitutionality of background of the case in Section I; provide twelve Virginia House of Delegates districts a brief overview of the law relating to racial (the “Challenged Districts”) as racial gerrymandering claims in Section II; and set gerrymanders in violation of the Equal out its findings on the factual background of Protection Clause of the Fourteenth the case in Section III. In Section IV, the Amendment to the Constitution of the United Court will articulate its understanding of the States. The case is ripe for decision following relevant legal framework for evaluating a four-day bench trial at which the parties racial gerrymandering (or “racial sorting”) presented oral testimony and offered claims, set out additional factual findings of numerous exhibits. Our findings of fact are general applicability, and conduct a district- based on our assessment of the record and are by-district analysis with district-specific grounded in our determinations respecting factual findings and district-specific the credibility of the witnesses. application of the relevant legal framework. Our conclusions of law address the several I. PROCEDURAL BACKGROUND legal issues presented by the parties. In particular, we have determined that it is the In the wake of the 2010 census, the Virginia burden of the Plaintiffs to prove by a General Assembly sought to redraw the preponderance of the evidence that race was legislative districts for the Virginia House of the predominate factor motivating the Delegates (“House”) and the Senate of decision to place a significant number of Virginia (“Senate”). The task of redistricting voters within or without a particular district is one that carries great political and legal in that, as to each of those districts, Virginia's consequence. In a representative democracy, General Assembly subordinated race-neutral such legislation shapes more than the abstract districting principles to racial considerations boundaries of electoral districts; it shapes the when forming the district. Based on this legal character, conduct, and culture of the standard and the record, we have concluded representatives themselves. On its face, the that, except as to House District 75, the legislation recites a singularly tedious list of Plaintiffs have not carried that burden and precincts and counties. But in application, that race was not shown to have been the few pieces of legislation have a more predominant factor in the creation of eleven profound impact on the function of of the twelve Challenged Districts. government and whether it acts as “the faithful echo of the voices of the people.” We are satisfied that race was the predominant factor in the creation of House The political significance of redistricting is District 75. However, we have also matched only by its legal complexity. Those concluded that, in using race, the General shepherding redistricting legislation must Assembly was pursuing a compelling state traverse a precarious path between interest, namely, actual compliance with constitutional and statutory demands that are federal antidiscrimination law, and that, in often in tension with one another and provide the process, the General Assembly used race opaque interpretive standards rather than in a manner narrowly tailored to achieve that clear rules. interest. 378 As to the 2011 redistricting, Delegate Chris by the Chief Judge of the United States Court Jones led this effort in the House. Delegate of Appeals for the Fourth Circuit. Jones played an instrumental role in the 2001 redistricting process and drew upon that The Virginia House of Delegates and the experience to lead the 2011 redistricting Virginia House of Delegates Speaker efforts. Because Virginia was a covered William Howell (“Intervenors”) moved to jurisdiction under Section 4 of the Voting intervene in the case. That motion was Rights Act of 1965 (“VRA”) at the time the granted. redistricting legislation was prepared, and was therefore subject to the requirements of A four-day bench trial began on July 7, 2015. Section 5 of the VRA, it was necessary to Because the Defendants are “administrative ensure that the plan did not result in a agencies that implement elections” but “do “retrogression in the position of racial not draw the districts,” the Defendants minorities with respect to their effective allowed the Intervenors to carry the burden of exercise of the electoral franchise.” In an litigation but joined the Intervenors' attempt to comply with this statutory arguments at the close of the case. For ease of command, Delegate Jones crafted a plan reference, the Defendants and Intervenors containing twelve majority-minority House will be referred to as the Intervenors. Districts (“HDs” or “Districts”). These are the Challenged Districts: HDs 63, 69, 70, 71, II. BASIC OVERVIEW OF RACIAL 74, 75, 77, 80, 89, 90, 92, and 95. GERRYMANDERING CLAIMS On December 22, 2014, Plaintiffs filed a Before proceeding to the facts of the case and Complaint against the Virginia State Board the substance of this litigation, a brief of Elections, the Virginia Department of overview of the constitutional and statutory Elections, and various members thereof in requirements pertinent to racial their official capacities (“Defendants”), gerrymandering claims is appropriate. As alleging that the Challenged Districts were noted above, these commands often cut racial gerrymanders in violation of the Equal counter to each other and require legislators Protection Clause of the Fourteenth to