The Supreme Court on Monday heard arguments in a pair of cases that could change the way electoral maps are redrawn nationwide as the court looks to resolve how race is used as a tool to define congressional districts.
Bethune-Hill v. Virginia Board of Elections and McCrory v. Harris pitted Marc Elias, a Democratic superlawyer who previously worked for Hillary Clinton's failed presidential campaign, against Paul Clement, an attorney who several conservatives had hoped to see included on President-elect Trump's Supreme Court shortlists.
The heated voting rights cases from Virginia and North Carolina have the potential to split the court evenly, with Justice Anthony Kennedy being a potentially decisive vote in both cases.
At issue in the Bethune-Hill case was whether a lower court erred in its ruling that race cannot predominate in the drawing of a given Virginia district "even where it is the most important consideration in drawing a given district unless the use of race results in 'actual conflict' with traditional districting criteria," as detailed in the jurisdictional statement of the case.
Roberts questioned Elias, the attorney for appellants Golden Bethune-Hill, at length about how to assess racial predominance. The Fourteenth Amendment's Equal Protection Clause prohibits the government from using race as a predominant factor in drawing districts except when it is narrowly tailored to meet a compelling governmental interest.
Roberts noted that it's hard to change the map with respect to any one district without affecting another, as Elias suggested remedies that would address several districts differently.
Clement, however, labeled the redistricting a "bipartisan success story" on behalf of Virginia. Clement's argument, alongside a lower court's reasoning, roused criticism from Kennedy, who said he has "problems" with the standards used to adjudicate the matter because predominance is used to measure intent.
Kennedy's stated reservations hinted he may serve to help create a progressive majority to overturn the trial court.
Clement sought to persuade Kennedy to his corner, in part, by claiming that the use of black voting-population floors in redistricting was not "inherently sinister." BVAP floors are minimum thresholds for the percentage of African Americans of voting age drawn to be included in the districts.
In McCrory v. Harris, the court is similarly seeking to decide whether North Carolina redistricting constituted racial gerrymandering in violation of the Equal Protection Clause. The bone of contention in this case was the redrawing of Congressional Districts 1 and 12, which were created to comply with the Voting Rights Act and provide the black voting-age population in those states a certain opportunity to elect a candidate of their choice.
Clement represented North Carolina Gov. Pat McCrory who conceded the 2016 election to his Democratic opponent while the arguments were underway on Monday. Clement argued that Congressional District 1 was redrawn to "preserve" the districts majority minority status, while the 12th district was drawn solely according to politics.
Clement prodded his opponent to present an alternative map that would show race — not politics — was the guiding factor in the 12th district. If race was the predominant factor, he argued, it would be "easy as pie" to show precisely where the mapmaker went wrong.
When Justice Sonia Sotomayor suggested that if presented with a map, Clement would simply try to provide the political reasoning for the maps appearing differently, she drew exasperated grimaces from Justice Samuel Alito and others on the court's conservative bloc.
Given the opportunity to follow Clement, Elias responded to the request for an alternative map by arguing that it was "not needed to prove circumstantially that race predominated" as a factor in the drawing of the districts.
Kennedy questioned Clement about the physical appearance of the district and asked about the extent to which Clement thought the Voting Rights Act required districts to be contiguous. Clement replied that he thought the act required "reasonably" contiguous districts.
Whether Clement's arguments satisfied Kennedy could prove critical in not only shaping the outcome of the case, but in determining the ethnic make-up of these districts' constituents and of the politicians representing them as a result.