Race and redistrictingThe justices tackle racial gerrymandering

The Supreme Court asks how race may inform the drawing of electoral district maps

THE Supreme Court has never taken a stand against gerrymandering, the game in which legislators choose their voters, rather than the other way around. But when states draw electoral district lines using racial considerations, the justices have admonished them not to overdo it. There is no problem with designing “majority-minority” districts to enhance the odds for black and Hispanic voters’ favoured candidates—the Voting Rights Act of 1965 required some such efforts—but when electoral maps reflect a “predominant” reliance on race, they violate the equal-protection clause of the 14th Amendment. The upshot: states had better pay attention to race when drafting electoral maps—but not too much attention.

Threading that needle has been the challenge of state legislatures for decades, and in two related cases on December 5th, the justices seemed exasperated by their perennial role as overseers of those efforts. Justice Stephen Breyer said he had hoped that a ruling in 2015 regarding racial gerrymandering in Alabama “would end these cases in this court”. But that decision, he rued, “certainly doesn’t seem to have” accomplished the goal. The justices seem destined to more stints of “reviewing 5,000-page records”, he said. Justice Samuel Alito added that the legal standard is “very, very complicated” and serves as “an invitation to litigation”.

In the first hearing, a case involving 12 state legislative districts in Virginia drawn up to achieve a 55% black majority, Chief Justice John Roberts began with a semantic query. How can one tell, he asked Marc Elias, the lawyer representing black voters, when a consideration of race is “predominant”? Mr Breyer also pressed Mr Elias to explain how illicit race-consciousness can be distinguished from mapping based on “traditional factors”—aiming for a reasonable district shape and protecting incumbents, for example—that may bring higher numbers of black voters into particular districts only as a side effect.

Mr Elias argued that Virginia’s districts “were drawn with the predominant purpose of placing voters...based solely on the colour of their skin”. The lower court upholding the districts, he said, was fooled by their appealing shape, which looked saner than the salamander-shaped districts that inspired the term “gerrymandering” in the early 19th century (the term mixes "salamander" and "Gerry": in 1812, Elbridge Gerry, a governor, signed a bill redistricting Massachusetts to benefit his party). But a district with attractive contours can still be rotten, he said. Pointing to one in Richmond, Mr Elias argued that Virginia “raid[ed] every other district around it” to bring in more black voters, diluting their voting strength in nearby areas. “[W]hite liberals” in the city “were voting in harmony” with black residents, he said, making such a large majority of blacks unnecessary. In response, Paul Clement, the lawyer representing the state, portrayed the redistricting effort as a “bipartisan success story”. Republicans and Democrats had worked together on the plan, he said, and the 55% threshold was intended to allow minority voters to “elect the candidates of their choice”.

Mr Clement approached the lectern first in the second case: a challenge to two congressional districts in North Carolina that a federal court had found to violate the constitution. Mr Clement argued that one district was packed with black voters only in order to comply with the Voting Rights Act; the other was concocted with “an avowedly political draw” designed to entrench the Republican majority by concentrating Democratic voters in fewer districts. Race, he said, played no real role. Just pointing to “the fact that they brought in a bunch of African-Americans because they were trying to bring in Democrats”, he said, “is about as interesting as the sun coming up in North Carolina”. Everybody knows that “there's about a 90% correlation between race and partisan identity”. So North Carolina was only playing politics, he said, not meddling with race.

In response, Mr Elias noted that North Carolina could have satisfied the Voting Rights Act with a much more modest rejiggering of the boundaries of the first district. Rather than ship in 2,800 voters, North Carolina carted 75,000 blacks in and pushed the same number of whites out. That amounts to “race serving as a proxy for partisanship, which is not permissible”, he said. The constitution forbids weakening minority voters’ overall power by overstuffing particular districts with black voters and draining their influence elsewhere.

The justices’ task in this pair of vexing cases is not light. Their challenge is compounded by the potential for split decisions with the diminished bench that Republican senators have refused to restore to full strength since Antonin Scalia died in March. If the justices divide 4-4 along ideological lines over both gerrymanders when they rule next spring or summer, a confounding state of affairs will ensue. North Carolina may see its district lines erased while Virginia’s maps are upheld, broadcasting a contradictory note to the nation about how race may inform the drawing of district boundaries.

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