Bethune-Hill v. Virginia State Bd. of Elections ( 2017 )

(Slip Opinion) OCTOBER TERM, 2016 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
BETHUNE-HILL ET AL. v. VIRGINIA STATE BOARD OF
ELECTIONS ET AL.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF VIRGINA
No. 15–680. Argued December 5, 2016—Decided March 1, 2017
After the 2010 census, the Virginia State Legislature drew new lines
for 12 state legislative districts, with a goal of ensuring that each dis-
trict would have a black voting-age population (BVAP) of at least
55%. Certain voters filed suit, claiming that the new districts violat-
ed the Fourteenth Amendment’s Equal Protection Clause. State leg-
islative officials (State) intervened to defend the plan. A three-judge
District Court rejected the challenges. As to 11 of the districts, the
court concluded that the voters had not shown, as this Court’s prece-
dent requires, “that race was the predominant factor motivating the
legislature’s decision to place a significant number of voters within or
without a particular district,” Miller v. Johnson, 515 U.S. 900, 916.
In so doing, the court held that race predominates only where there is
an “ ‘actual conflict between traditional redistricting criteria and
race.’ ” 141 F. Supp. 3d 505, 524. It thus confined the predominance
analysis to the portions of the new lines that appeared to deviate
from traditional criteria. As to the remaining district, District 75, the
court found that race did predominate, but that the lines were consti-
tutional because the legislature’s use of race was narrowly tailored to
a compelling state interest. In particular, the court found the legisla-
ture had good reasons to believe that a 55% racial target was neces-
sary in District 75 to avoid diminishing the ability of black voters to
elect their preferred candidates, which at the time would have violat-
ed §5 of the Voting Rights Act of 1965, see Alabama Legislative Black
Caucus v. Alabama, 575 U. S. ___, ___.
Held:
1. The District Court employed an incorrect legal standard in de-
termining that race did not predominate in 11 of the 12 districts.
2 BETHUNE-HILL v. VIRGINIA STATE BD. OF ELECTIONS
Syllabus
Pp. 6–13.
(a) The Equal Protection Clause prohibits a State, without suffi-
cient justification, from “separat[ing] its citizens into different voting
districts on the basis of race.” Miller, 515 U.S., at 911. Courts must
“exercise extraordinary caution in adjudicating claims” of racial ger-
rymandering, id., at 916, since a legislature is always “aware of race
when it draws district lines, just as it is aware of . . . other demo-
graphic factors,” Shaw v. Reno, 509 U.S. 630, 646 (Shaw I). A plain-
tiff alleging racial gerrymandering thus bears the burden “to show,
either through circumstantial evidence of a district’s shape and de-
mographics or more direct evidence going to legislative purpose, that
race was the predominant factor motivating the legislature’s [district-
ing] decision,” which requires proving “that the legislature subordi-
nated traditional race-neutral districting principles . . . to racial con-
siderations.” Miller, supra, at 916. Here, the District Court
misapplied controlling law in two principal ways. Pp. 6–7.
(b) First, the District Court misunderstood relevant precedents
when it required the challengers to establish, as a prerequisite to
showing racial predominance, an actual conflict between the enacted
plan and traditional redistricting principles. This Court has made
clear that parties may show predominance “either through circum-
stantial evidence of a district’s shape and demographics or more di-
rect evidence going to legislative purpose,” Miller, supra, at 916, and
that race may predominate even when a plan respects traditional
principles, Shaw v. Hunt, 517 U.S. 899, 907 (Shaw II).
The State’s theory in this case is irreconcilable with Miller and
Shaw II. The State insists, e.g., that the harm from racial gerryman-
dering lies not in racial line-drawing per se but in grouping voters of
the same race together when they otherwise lack shared interests.
But “the constitutional violation” in racial gerrymandering cases
stems from the “racial purpose of state action, not its stark manifes-
tation.” Miller, supra, at 913. The State also contends that race does
not have a prohibited effect on a district’s lines if the legislature
could have drawn the same lines in accordance with traditional crite-
ria. The proper inquiry, however, concerns the actual considerations
that provided the essential basis for the lines drawn, not post hoc jus-
tifications that the legislature could have used but did not. A legisla-
ture could construct a plethora of potential maps that look consistent
with traditional, race-neutral principles, but if race is the overriding
reason for choosing one map over others, race still may predominate.
A conflict or inconsistency may be persuasive circumstantial evidence
tending to show racial predomination, but no rule requires challeng-
ers to present this kind of evidence in every case. As a practical mat-
ter, this kind of evidence may be necessary in many or even most
Cite as: 580 U. S. ____ (2017) 3
Syllabus
cases. But there may be cases where challengers can establish racial
predominance without evidence of an actual conflict. Pp. 7–11.
(c) The District Court also erred in considering the legislature’s
racial motive only to the extent that the challengers identified devia-
tions from traditional redistricting criteria attributable to race and
not to some other factor. Racial gerrymandering claims proceed “dis-
trict-by-district,” Alabama, supra, at ___, and courts should not di-
vorce any portion of a district’s lines—whatever their relationship to
traditional principles—from the rest of the district. Courts may con-
sider evidence pertaining to an area that is larger or smaller than the
district at issue. But the ultimate object of the inquiry is the legisla-
ture’s predominant motive for the district’s design as a whole, and
any explanation for a particular portion of the lines must take ac-
count of the districtwide context. A holistic analysis is necessary to
give the proper weight to districtwide evidence, such as stark splits
in the racial composition of populations moved into and out of a dis-
trict, or the use of a racial target. Pp. 11–12.
(d) The District Court is best positioned to determine on remand
the extent to which, under the proper standard, race directed the
shape of these 11 districts, and if race did predominate, whether
strict scrutiny is satisfied. Pp. 12–13.
2. The District Court’s judgment regarding District 75 is consistent
with the basic narrow tailoring analysis explained in Alabama.
Where a challenger succeeds in establishing racial predominance, the
burden shifts to the State to “demonstrate that its districting legisla-
tion is narrowly tailored to achieve a compelling interest.” Miller,
supra, at 920. Here, it is assumed that the State’s interest in comply-
ing with the Voting Rights Act was a compelling interest. When a
State justifies the predominant use of race in redistricting on the ba-
sis of the need to comply with the Voting Rights Act, “the narrow tai-
loring requirement insists only that the legislature have a ‘strong ba-
sis in evidence’ in support of the (race-based) choice that it has
made.” Alabama, 575 U. S., at ___–___. The State must show not
that its action was actually necessary to avoid a statutory violation,
but only that the legislature had “ ‘good reasons to believe’ ” its use of
race was needed in order to satisfy the Voting Rights Act. Ibid.
There was no error in the District Court’s conclusion that the legisla-
ture had sufficient grounds to determine that the race-based calculus
it employed in District 75 was necessary to avoid violating §5. Under
the facts found by that court, the legislature performed the kind of
functional analysis of District 75 necessary under §5, and the result
reflected the good-faith efforts of legislators to achieve an informed
bipartisan consensus. In contesting the sufficiency of that evidence
and the evidence justifying the 55% BVAP floor, the challengers ask
4 BETHUNE-HILL v. VIRGINIA STATE BD. OF ELECTIONS
Syllabus
too much from state officials charged with the sensitive duty of reap-
portioning legislative districts. As to the claim that the BVAP floor is
akin to the “mechanically numerical view” of §5 rejected in Alabama,
supra, at ___, the record here supports the State’s conclusion that
this was an instance where a 55% BVAP was necessary for black vot-
ers to have a functional working majority. Pp. 13–16.
141 F. Supp. 3d 505, affirmed in part, vacated in part, and remanded.
KENNEDY, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined.
ALITO, J., filed an opinion concurring in part and concurring in the
judgment. THOMAS, J., filed an opinion concurring in the judgment in
part and dissenting in part.
Cite as: 580 U. S. ____ (2017) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 15–680
_________________
GOLDEN BETHUNE-HILL, ET AL., APPELLANTS v.
VIRGINIA STATE BOARD OF ELECTIONS, ET AL.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF VIRGINIA
[March 1, 2017]
JUSTICE KENNEDY delivered the opinion of the Court.
This case addresses whether the Virginia state legisla-
ture’s consideration of race in drawing new lines for 12
state legislative districts violated the Equal Protection
Clause of the Fourteenth Amendment. After the 2010
census, some redistricting was required to ensure proper
numerical apportionment for the Virginia House of Dele-
gates. It is undisputed that the boundary lines for the 12
districts at issue were drawn with a goal of ensuring that
each district would have a black voting-age population
(BVAP) of at least 55%.
Certain voters challenged the new districts as unconsti-
tutional racial gerrymanders. The United States District
Court for the Eastern District of Virginia, constituted as a
three-judge district court, rejected the challenges as to
each of the 12 districts. As to 11 of the districts, the Dis-
trict Court concluded that the voters had not shown, as
this Court’s precedent requires, “that race was the pre-
dominant factor motivating the legislature’s decision to
place a significant number of voters within or without a
particular district.” Miller v. Johnson, 515 U.S. 900, 916
2 BETHUNE-HILL v. VIRGINIA STATE BD. OF ELECTIONS
Opinion of the Court
(1995). The District Court held that race predominates
only where there is an “ ‘actual conflict between traditional
redistricting criteria and race,’ ” 141 F. Supp. 3d 505, 524
(ED Va. 2015), so it confined the predominance analysis to
the portions of the new lines that appeared to deviate from
traditional criteria, and found no violation. As to the
remaining district, District 75, the District Court found
that race did predominate. It concluded, however, that the
lines were constitutional because the legislature’s use of
race was narrowly tailored to a compelling state interest.
In particular, the District Court determined that the
legislature had “good reasons to believe” that a 55% racial
target was necessary in District 75 to avoid diminishing
the ability of black voters to elect their preferred candi-
dates, which at the time would have violated §5 of the
Voting Rights Act of 1965. Alabama Legislative Black
Caucus v. Alabama, 575 U. S. ___, ___ (2015) (slip op., at
22) (internal quotation marks omitted and emphasis
deleted).
On appeal to this Court, the challengers contend that
the District Court employed an incorrect legal standard
for racial predominance and that the legislature lacked
good reasons for its use of race in District 75. This Court
now affirms as to District 75 and vacates and remands as
to the remaining 11 districts.
I
After the 2010 census, the Virginia General Assembly
set out to redraw the legislative districts for the State
Senate and House of Delegates in time for the 2011 elec-
tions. In February 2011, the House Committee on Privi-
leges and Elections adopted a resolution establishing
criteria to guide the redistricting process. Among those
criteria were traditional redistricting factors such as
compactness, contiguity of territory, and respect for com-
munities of interest. But above those traditional objec-
Cite as: 580 U. S. ____ (2017) 3
Opinion of the Court
tives, the committee gave priority to two other goals.
First, in accordance with the principle of one person, one
vote, the committee resolved that “[t]he population of each
district shall be as nearly equal to the population of every
other district as practicable,” with any deviations falling
“within plus-or-minus one percent.” 141 F. Supp. 3d, at
518. Second, the committee resolved that the new map
must comply with the “protections against . . . unwarranted
retrogression” contained in §5 of the Voting Rights Act.
Ibid. At the time, §5 required covered jurisdictions, in-
cluding Virginia, to preclear any change to a voting stand-
ard, practice, or procedure by showing federal authorities
that the change would not have the purpose or effect of
“diminishing the ability of [members of a minority group]
to elect their preferred candidates of choice.” §5, 120 Stat.
580–581, 52 U.S. C. §10304(b). After the redistricting
process here was completed, this Court held that the
coverage formula in §4(b) of the Voting Rights Act no
longer may be used to require preclearance under §5. See
Shelby County v. Holder, 570 U. S. ___, ___ (2013) (slip op.,
at 24).
The committee’s criteria presented potential problems
for 12 House districts. Under §5 as Congress amended it
in 2005, “[a] plan leads to impermissible retrogression
when, compared to the plan currently in effect (typically
called a ‘benchmark plan’), the new plan diminishes the
number of districts in which minority groups can ‘elect
their preferred candidates of choice’ (often called ‘ability-
to-elect’ districts).” Harris v. Arizona Independent Redis-
tricting Comm’n, 578 U. S. ___, ___–___ (2016) (slip op., at
5–6) (quoting 52 U.S. C. §10304(b)). The parties agree
that the 12 districts at issue here, where minorities had
constituted a majority of the voting-age population for
many past elections, qualified as “ability-to-elect” districts.
Most of the districts were underpopulated, however, so
any new plan required moving significant numbers of new
4 BETHUNE-HILL v. VIRGINIA STATE BD. OF ELECTIONS
Opinion of the Court
voters into these districts in order to comply with the
principle of one person, one vote. Under the benchmark
plan, the districts had BVAPs ranging from 62.7% down to
46.3%. Three districts had BVAPs below 55%.
Seeking to maintain minority voters’ ability to elect
their preferred candidates in these districts while comply-
ing with the one-person, one-vote criterion, legislators
concluded that each of the 12 districts “needed to contain a
BVAP of at least 55%.” 141 F. Supp. 3d, at 519. At trial,
the parties disputed whether the 55% figure “was an
aspiration or a target or a rule.” Ibid. But they did not
dispute “the most important question—whether [the 55%]
figure was used in drawing the Challenged Districts.”
Ibid. The parties agreed, and the District Court found,
“that the 55% BVAP figure was used in structuring the
districts.” Ibid. In the enacted plan all 12 districts con-
tained a BVAP greater than 55%.
Who first suggested the 55% BVAP criterion and how
the legislators agreed upon it was less clear from the
evidence. See id., at 521 (describing the “[t]estimony on
this question” as “a muddle”). In the end, the District
Court found that the 55% criterion emerged from discus-
sions among certain members of the House Black Caucus
and the leader of the redistricting effort in the House,
Delegate Chris Jones, “based largely on concerns pertain-
ing to the re-election of Delegate Tyler in [District] 75.”
Id., at 522. The 55% figure “was then applied across the
board to all twelve” districts. Ibid.
In April 2011, the General Assembly passed Delegate
Jones’ plan with broad support from both parties and
members of the Black Caucus. One of only two dissenting
members of the Black Caucus was Delegate Tyler of Dis-
trict 75, who objected solely on the ground that the 55.4%
BVAP in her district was too low. In June 2011, the U. S.
Department of Justice precleared the plan.
Three years later, before this suit was filed, a separate
Cite as: 580 U. S. ____ (2017) 5
Opinion of the Court
District Court struck down Virginia’s third federal con-
gressional district (not at issue here), based in part on the
legislature’s use of a 55% BVAP threshold. See Page v.
Virginia State Bd. of Elections, 58 F. Supp. 3d 533, 553
(ED Va. 2014), vacated and remanded sub nom. Cantor v.
Personhuballah, 575 U. S. ___ (2015), judgt. entered
sub nom. Page v. Virginia State Bd. of Elections, 2015 WL
3604029 (June 5, 2015), appeal dism’d sub nom. Wittman
v. Personhuballah, 578 U. S. ___ (2016). After that deci-
sion, 12 voters registered in the 12 districts here at issue
filed this action challenging the district lines under the
Equal Protection Clause. Because the claims “challeng[ed]
the constitutionality of . . . the apportionment of [a]
statewide legislative body,” the case was heard by a three-
judge District Court. 28 U.S. C. §2284(a). The Virginia
House of Delegates and its Speaker, William Howell (to-
gether referred to hereinafter as the State), intervened
and assumed responsibility for defending the plan, both
before the District Court and now before this Court.
After a 4-day bench trial, a divided District Court ruled
for the State. With respect to each challenged district, the
court first assessed whether “racial considerations pre-
dominated over—or ‘subordinated’—traditional redistrict-
ing criteria.” 141 F. Supp. 3d, at 523. An essential prem-
ise of the majority opinion was that race does not
predominate unless there is an “actual conflict between
traditional redistricting criteria and race that leads to the
subordination of the former.” Id., at 524. To implement
that standard, moreover, the court limited its inquiry into
racial motive to those portions of the district lines that
appeared to deviate from traditional criteria. The court
thus “examine[d] those aspects of the [district] that ap-
pear[ed] to constitute ‘deviations’ from neutral criteria” to
ascertain whether the deviations were attributable to race
or to other considerations, “such as protection of incum-
bents.” Id., at 533–534. Only if the court found a devia-
6 BETHUNE-HILL v. VIRGINIA STATE BD. OF ELECTIONS
Opinion of the Court
tion attributable to race did it proceed to “determine
whether racial considerations qualitatively subordinated
all other non-racial districting criteria.” Ibid. Under that
analysis, the court found that race did not predominate in
11 of the 12 districts.
When it turned to District 75, the District Court found
that race did predominate. The court reasoned that
“[a]chieving a 55% BVAP floor required ‘drastic maneuver-
ing’ that is reflected on the face of the district.” Id., at
557. Applying strict scrutiny, the court held that compli-
ance with §5 was a compelling state interest and that the
legislature’s consideration of race in District 75 was nar-
rowly tailored. As to narrow tailoring, the court explained
that the State had “a strong basis in evidence” to believe
that its actions were “reasonably necessary” to avoid
retrogression. Id., at 548. In particular, the court found
that Delegate Jones had considered “precisely the kinds of
evidence that legislators are encouraged to use” in achiev-
ing compliance with §5, including turnout rates, the dis-
trict’s large disenfranchised prison population, and voting
patterns in the contested 2005 primary and general elec-
tions. Id., at 558.
Judge Keenan dissented as to all 12 districts. She
concluded that the majority applied an incorrect under-
standing of racial predominance and that Delegate Jones’
analysis of District 75 was too “general and conclusory.”
Id., at 578. This appeal followed, and probable jurisdiction
was noted. 578 U. S. ___ (2016); see 28 U.S. C. §1253.
II
Against the factual and procedural background set out
above, it is now appropriate to consider the controlling
legal principles in this case. The Equal Protection Clause
prohibits a State, without sufficient justification, from
“separat[ing] its citizens into different voting districts on
the basis of race.” Miller, 515 U.S., at 911. The harms
Cite as: 580 U. S. ____ (2017) 7
Opinion of the Court
that flow from racial sorting “include being personally
subjected to a racial classification as well as being repre-
sented by a legislator who believes his primary obligation
is to represent only the members of a particular racial
group.” Alabama, 575 U. S., at ___ (slip op., at 6) (altera-
tions, citation, and internal quotation marks omitted). At
the same time, courts must “exercise extraordinary cau-
tion in adjudicating claims that a State has drawn district
lines on the basis of race.” Miller, 515 U.S., at 916. “Elec-
toral districting is a most difficult subject for legislatures,”
requiring a delicate balancing of competing considerations.
Id., at 915. And “redistricting differs from other kinds of
state decisionmaking in that the legislature always is
aware of race when it draws district lines, just as it is
aware of . . . a variety of other demographic factors.”
Shaw v. Reno, 509 U.S. 630, 646 (1993) (Shaw I ).
In light of these considerations, this Court has held that
a plaintiff alleging racial gerrymandering bears the bur-
den “to show, either through circumstantial evidence of a
district’s shape and demographics or more direct evidence
going to legislative purpose, that race was the predomi-
nant factor motivating the legislature’s decision to place a
significant number of voters within or without a particular
district.” Miller, 515 U.S. at 916. To satisfy this burden,
the plaintiff “must prove that the legislature subordinated
traditional race-neutral districting principles . . . to racial
considerations.” Ibid. The challengers contend that, in
finding that race did not predominate in 11 of the 12
districts, the District Court misapplied controlling law in
two principal ways. This Court considers them in turn.
A
The challengers first argue that the District Court
misunderstood the relevant precedents when it required
the challengers to establish, as a prerequisite to showing
racial predominance, an actual conflict between the enacted
8 BETHUNE-HILL v. VIRGINIA STATE BD. OF ELECTIONS
Opinion of the Court
plan and traditional redistricting principles. The Court
agrees with the challengers on this point.
A threshold requirement that the enacted plan must
conflict with traditional principles might have been recon-
cilable with this Court’s case law at an earlier time. In
Shaw I, the Court recognized a claim of racial gerryman-
dering for the first time. See 509 U.S., at 652. Certain
language in Shaw I can be read to support requiring a
challenger who alleges racial gerrymandering to show an
actual conflict with traditional principles. The opinion
stated, for example, that strict scrutiny applies to “redis-
tricting legislation that is so bizarre on its face that it is
unexplainable on grounds other than race.” Id., at 644
(internal quotation marks omitted). The opinion also
stated that “reapportionment is one area in which appear-
ances do matter.” Id., at 647.
The Court’s opinion in Miller, however, clarified the
racial predominance inquiry. In particular, it rejected the
argument that, “regardless of the legislature’s purposes, a
plaintiff must demonstrate that a district’s shape is so
bizarre that it is unexplainable other than on the basis of
race.” 515 U.S., at 910–911. The Court held to the con-
trary in language central to the instant case: “Shape is
relevant not because bizarreness is a necessary element of
the constitutional wrong or a threshold requirement of
proof, but because it may be persuasive circumstantial
evidence that race for its own sake, and not other district-
ing principles, was the legislature’s dominant and control-
ling rationale.” Id., at 913. Parties therefore “may rely on
evidence other than bizarreness to establish race-based
districting,” and may show predominance “either through
circumstantial evidence of a district’s shape and de-
mographics or more direct evidence going to legislative
purpose.” Id., at 913, 916.
The Court addressed racial gerrymandering and tradi-
tional redistricting factors again in Shaw v. Hunt, 517
Cite as: 580 U. S. ____ (2017) 9
Opinion of the Court
U. S. 899 (1996) (Shaw II). The Court there rejected the
view of one of the dissents that “strict scrutiny does not
apply where a State ‘respects’ or ‘complies with traditional
districting principles.’ ” Id., at 906 (quoting id., at 931–932
(Stevens, J., dissenting); alteration omitted). Race may
predominate even when a reapportionment plan respects
traditional principles, the Court explained, if “[r]ace was
the criterion that, in the State’s view, could not be com-
promised,” and race-neutral considerations “came into
play only after the race-based decision had been made.”
Id., at 907.
The State’s theory in this case is irreconcilable with
Miller and Shaw II. The State insists, for example, that
the harm from racial gerrymandering lies not in racial
line-drawing per se but in grouping voters of the same race
together when they otherwise lack shared interests. But
“the constitutional violation” in racial gerrymandering
cases stems from the “racial purpose of state action, not its
stark manifestation.” Miller, supra, at 913. The Equal
Protection Clause does not prohibit misshapen districts.
It prohibits unjustified racial classifications.
The State contends further that race does not have a
prohibited effect on a district’s lines if the legislature could
have drawn the same lines in accordance with traditional
criteria. That argument parallels the District Court’s
reasoning that a reapportionment plan is not an express
racial classification unless a racial purpose is apparent
from the face of the plan based on the irregular nature of
the lines themselves. See 141 F. Supp. 3d, at 524–526.
This is incorrect. The racial predominance inquiry con-
cerns the actual considerations that provided the essential
basis for the lines drawn, not post hoc justifications the
legislature in theory could have used but in reality did not.
Traditional redistricting principles, moreover, are nu-
merous and malleable. The District Court here identified
no fewer than 11 race-neutral redistricting factors a legis-
10 BETHUNE-HILL v. VIRGINIA STATE BD. OF ELECTIONS
Opinion of the Court
lature could consider, some of which are “surprisingly
ethereal” and “admi[t] of degrees.” Id., at 535, 537. By
deploying those factors in various combinations and per-
mutations, a State could construct a plethora of potential
maps that look consistent with traditional, race-neutral
principles. But if race for its own sake is the overriding
reason for choosing one map over others, race still may
predominate.
For these reasons, a conflict or inconsistency between
the enacted plan and traditional redistricting criteria is
not a threshold requirement or a mandatory precondition
in order for a challenger to establish a claim of racial
gerrymandering. Of course, a conflict or inconsistency
may be persuasive circumstantial evidence tending to
show racial predomination, but there is no rule requiring
challengers to present this kind of evidence in every case.
As a practical matter, in many cases, perhaps most
cases, challengers will be unable to prove an unconstitu-
tional racial gerrymander without evidence that the en-
acted plan conflicts with traditional redistricting criteria.
In general, legislatures that engage in impermissible race-
based redistricting will find it necessary to depart from
traditional principles in order to do so. And, in the ab-
sence of a conflict with traditional principles, it may be
difficult for challengers to find other evidence sufficient to
show that race was the overriding factor causing neutral
considerations to be cast aside. In fact, this Court to date
has not affirmed a predominance finding, or remanded a
case for a determination of predominance, without evi-
dence that some district lines deviated from traditional
principles. See Alabama, 575 U. S., at ___ (slip op., at 17);
Hunt v. Cromartie, 526 U.S. 541, 547 (1999); Bush v.
Vera, 517 U.S. 952, 962, 966, 974 (1996) (plurality opin-
ion); Shaw II, supra, at 905–906; Miller, supra, at 917;
Shaw I, supra, at 635–636. Yet the law responds to proper
evidence and valid inferences in ever-changing circum-
Cite as: 580 U. S. ____ (2017) 11
Opinion of the Court
stances, as it learns more about ways in which its com-
mands are circumvented. So there may be cases where
challengers will be able to establish racial predominance
in the absence of an actual conflict by presenting direct
evidence of the legislative purpose and intent or other
compelling circumstantial evidence.
B
The challengers submit that the District Court erred
further when it considered the legislature’s racial motive
only to the extent that the challengers identified devia-
tions from traditional redistricting criteria that were
attributable to race and not to some other factor. In the
challengers’ view, this approach foreclosed a holistic anal-
ysis of each district and led the District Court to give
insufficient weight to the 55% BVAP target and other
relevant evidence that race predominated. Again, this
Court agrees.
As explained, showing a deviation from, or conflict with,
traditional redistricting principles is not a necessary
prerequisite to establishing racial predominance. Supra,
at 10. But even where a challenger alleges a conflict, or
succeeds in showing one, the court should not confine its
analysis to the conflicting portions of the lines. That is
because the basic unit of analysis for racial gerrymander-
ing claims in general, and for the racial predominance
inquiry in particular, is the district. Racial gerrymander-
ing claims proceed “district-by-district.” Alabama, 575
U. S., at ___ (slip op., at 6). “We have consistently de-
scribed a claim of racial gerrymandering as a claim that
race was improperly used in the drawing of the boundaries
of one or more specific electoral districts.” Ibid. And
Miller’s basic predominance test scrutinizes the legisla-
ture’s motivation for placing “a significant number of
voters within or without a particular district.” 515 U.S.,
at 916. Courts evaluating racial predominance therefore
12 BETHUNE-HILL v. VIRGINIA STATE BD. OF ELECTIONS
Opinion of the Court
should not divorce any portion of the lines—whatever
their relationship to traditional principles—from the rest
of the district.
This is not to suggest that courts evaluating racial
gerrymandering claims may not consider evidence pertain-
ing to an area that is larger or smaller than the district at
issue. The Court has recognized that “[v]oters, of course,
can present statewide evidence in order to prove racial
gerrymandering in a particular district.” Alabama, supra,
at ___ (slip op., at 7) (emphasis deleted). Districts share
borders, after all, and a legislature may pursue a common
redistricting policy toward multiple districts. Likewise, a
legislature’s race-based decisionmaking may be evident in
a notable way in a particular part of a district. It follows
that a court may consider evidence regarding certain
portions of a district’s lines, including portions that con-
flict with traditional redistricting principles.
The ultimate object of the inquiry, however, is the legis-
lature’s predominant motive for the design of the district
as a whole. A court faced with a racial gerrymandering
claim therefore must consider all of the lines of the district
at issue; any explanation for a particular portion of the
lines, moreover, must take account of the districtwide
context. Concentrating on particular portions in isolation
may obscure the significance of relevant districtwide
evidence, such as stark splits in the racial composition of
populations moved into and out of disparate parts of the
district, or the use of an express racial target. A holistic
analysis is necessary to give that kind of evidence its
proper weight.
C
The challengers ask this Court not only to correct the
District Court’s racial predominance standard but also to
apply that standard and conclude that race in fact did
predominate in the 11 districts where the District Court
Cite as: 580 U. S. ____ (2017) 13
Opinion of the Court
held that it did not. For its part, the State asks the Court
to hold that, even if race did predominate in these dis-
tricts, the State’s predominant use of race was narrowly
tailored to the compelling interest in complying with §5.
The Court declines these requests. “[O]urs is a court of
final review and not first view.” Department of Transpor-
tation v. Association of American Railroads, 575 U. S. ___,
___ (2015) (slip op., at 12) (internal quotation marks omit-
ted). The District Court is best positioned to determine in
the first instance the extent to which, under the proper
standard, race directed the shape of these 11 districts.
And if race did predominate, it is proper for the District
Court to determine in the first instance whether strict
scrutiny is satisfied. These matters are left for the Dis-
trict Court on remand.
III
The Court now turns to the arguments regarding Dis-
trict 75. Where a challenger succeeds in establishing
racial predominance, the burden shifts to the State to
“demonstrate that its districting legislation is narrowly
tailored to achieve a compelling interest.” Miller, supra,
at 920. The District Court here determined that the
State’s predominant use of race in District 75 was narrowly
tailored to achieve compliance with §5. The challengers
contest the finding of narrow tailoring, but they do not
dispute that compliance with §5 was a compelling interest
at the relevant time. As in previous cases, therefore, the
Court assumes, without deciding, that the State’s interest
in complying with the Voting Rights Act was compelling.
E.g., Alabama, supra, at ___–___ (slip op., at 19–23); Shaw
II, 517 U.S., at 915.
Turning to narrow tailoring, the Court explained the
contours of that requirement in Alabama. When a State
justifies the predominant use of race in redistricting on
the basis of the need to comply with the Voting Rights Act,
14 BETHUNE-HILL v. VIRGINIA STATE BD. OF ELECTIONS
Opinion of the Court
“the narrow tailoring requirement insists only that the
legislature have a strong basis in evidence in support of
the (race-based) choice that it has made.” 575 U. S., at ___
(slip op., at 22) (internal quotation marks omitted). That
standard does not require the State to show that its action
was “actually . . . necessary” to avoid a statutory violation,
so that, but for its use of race, the State would have lost in
court. Ibid. (internal quotation marks omitted). Rather,
the requisite strong basis in evidence exists when the
legislature has “good reasons to believe” it must use race
in order to satisfy the Voting Rights Act, “even if a court
does not find that the actions were necessary for statutory
compliance.” Ibid. (internal quotation marks omitted).
The Court now finds no error in the District Court’s
conclusion that the State had sufficient grounds to deter-
mine that the race-based calculus it employed in District
75 was necessary to avoid violating §5. As explained, §5 at
the time barred Virginia from adopting any districting
change that would “have the effect of diminishing the
ability of [members of a minority group] to elect their
preferred candidates of choice.” 52 U.S. C. §10304(b).
Determining what minority population percentage will
satisfy that standard is a difficult task requiring, in the
view of the Department of Justice, a “functional analysis
of the electoral behavior within the particular . . . election
district.” Guidance Concerning Redistricting Under Sec-
tion 5 of the Voting Rights Act, 76 Fed. Reg. 7471 (2011).
Under the facts found by the District Court, the legisla-
ture performed that kind of functional analysis of District
75 when deciding upon the 55% BVAP target. Redrawing
this district presented a difficult task, and the result
reflected the good-faith efforts of Delegate Jones and his
colleagues to achieve an informed bipartisan consensus.
Delegate Jones met with Delegate Tyler “probably half a
dozen times to configure her district” in order to avoid
retrogression. 141 F. Supp. 3d, at 558 (internal quotation
Cite as: 580 U. S. ____ (2017) 15
Opinion of the Court
marks omitted). He discussed the district with incum-
bents from other majority-minority districts. He also
considered turnout rates, the results of the recent contested
primary and general elections in 2005, and the dis-
trict’s large population of disenfranchised black prisoners.
The challengers, moreover, do not dispute that District 75
was an ability-to-elect district, or that white and black
voters in the area tend to vote as blocs. See id., at 557–
559. In light of Delegate Jones’ careful assessment of local
conditions and structures, the State had a strong basis in
evidence to believe a 55% BVAP floor was required to
avoid retrogression.
The challengers’ responses ask too much from state
officials charged with the sensitive duty of reapportioning
legislative districts. First, the challengers contest the
sufficiency of the evidence showing that Delegate Jones in
fact performed a functional analysis, in part because that
analysis was not memorialized in writing. But the Dis-
trict Court’s factual findings are reviewed only for clear
error. See Easley v. Cromartie, 532 U.S. 234, 242 (2001).
The findings regarding how the legislature arrived at the
55% BVAP target are well supported, and “we do not . . .
require States engaged in redistricting to compile a com-
prehensive administrative record.” Vera, 517 U.S., at 966
(internal quotation marks omitted).
The challengers argue further that the drafters of the
plan had insufficient evidence to justify a 55% BVAP floor.
The 2005 elections were idiosyncratic, the challengers
contend; moreover, demographic information about the
prison in the district is absent from the record, and Dele-
gate Tyler’s perspective was influenced by a personal
interest in reelection. That may have been so, and for
those reasons, it is possible that, if the State had drawn
District 75 with a BVAP below 55% and had sought judi-
cial preclearance, a court would have found no §5 viola-
tion. But that is not the question here. “The law cannot
16 BETHUNE-HILL v. VIRGINIA STATE BD. OF ELECTIONS
Opinion of the Court
insist that a state legislature, when redistricting, deter-
mine precisely what percent minority population §5 de-
mands.” Alabama, 575 U. S., at ___ (slip op., at 22). The
question is whether the State had “good reasons” to be-
lieve a 55% BVAP floor was necessary to avoid liability
under §5. Ibid. (internal quotation marks omitted). The
State did have good reasons under these circumstances.
Holding otherwise would afford state legislatures too little
breathing room, leaving them “trapped between the com-
peting hazards of liability” under the Voting Rights Act
and the Equal Protection Clause. Vera, supra, at 977
(internal quotation marks omitted).
As a final point, the challengers liken the 55% BVAP
floor here to the “mechanically numerical view” of §5 this
Court rejected in Alabama. 575 U. S., at ___ (slip op., at
21). But Alabama did not condemn the use of BVAP
targets to comply with §5 in every instance. Rather, this
Court corrected the “misperception” that §5 required a
State to “maintai[n] the same population percentages in
majority-minority districts as in the prior plan.” Id., at
___–___ (slip op., at 19–20). “[I]t would seem highly un-
likely,” the Court explained, that reducing a district’s
BVAP “from, say, 70% to 65% would have a significant
impact on the black voters’ ability to elect their preferred
candidate.” Id., at ___ (slip op., at 21). Yet reducing the
BVAP below 55% well might have that effect in some
cases. The record here supports the legislature’s conclu-
sion that this was one instance where a 55% BVAP was
necessary for black voters to have a functional working
majority.
IV
The Court’s holding in this case is controlled by prece-
dent. The Court reaffirms the basic racial predominance
analysis explained in Miller and Shaw II, and the basic
narrow tailoring analysis explained in Alabama. The
Cite as: 580 U. S. ____ (2017) 17
Opinion of the Court
District Court’s judgment as to District 75 is consistent
with these principles. Applying these principles to the
remaining 11 districts is entrusted to the District Court in
the first instance.
The judgment of the District Court is affirmed in part
and vacated in part. The case is remanded for further
proceedings consistent with this opinion.
It is so ordered.
Cite as: 580 U. S. ____ (2017) 1
Opinion of ALITO, J.
SUPREME COURT OF THE UNITED STATES
_________________
No. 15–680
_________________
GOLDEN BETHUNE-HILL, ET AL., APPELLANTS v.
VIRGINIA STATE BOARD OF ELECTIONS, ET AL.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF VIRGINIA
[March 1, 2017]
JUSTICE ALITO, concurring in part and concurring in the
judgment.
I join the opinion of the Court insofar as it upholds the
constitutionality of District 75. Ante, at 13–16. The dis-
tricting plan at issue here was adopted prior to our deci-
sion in Shelby County v. Holder, 570 U. S. ___ (2013), and
therefore it is appropriate to apply the body of law in effect
at that time. What is more, appellants have never con-
tested the District Court’s holding that compliance with §5
of the Voting Rights Act was a compelling government
interest for covered jurisdictions before our decision in
Shelby County. See 141 F. Supp. 3d 505, 545–547 (ED Va.
2015).
I concur in the judgment of the Court insofar as it va-
cates and remands the judgment below with respect to all
the remaining districts. Unlike the Court, however, I
would hold that all these districts must satisfy strict
scrutiny. See post, at 1–2 (THOMAS, J., concurring in
judgment in part and dissenting in part); see also League
of United Latin American Citizens v. Perry, 548 U.S. 399,
517 (2006) (Scalia, J., concurring in judgment in part and
dissenting in part) (“[W]hen a legislature intentionally
creates a majority-minority district, race is necessarily its
predominant motivation and strict scrutiny is therefore
triggered”).
Cite as: 580 U. S. ____ (2017) 1
Opinion of THOMAS, J.
SUPREME COURT OF THE UNITED STATES
_________________
No. 15–680
_________________
GOLDEN BETHUNE-HILL, ET AL., APPELLANTS v.
VIRGINIA STATE BOARD OF ELECTIONS, ET AL.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF VIRGINIA
[March 1, 2017]
JUSTICE THOMAS, concurring in the judgment in part
and dissenting in part.
Appellants contend that 12 of Virginia’s state legislative
districts are unconstitutional racial gerrymanders. The
three-judge District Court rejected their challenge, holding
that race was not the legislature’s predominant motive in
drawing 11 of the districts and that the remaining district
survives strict scrutiny. I would reverse the District Court
as to all 12 districts. I therefore concur in the judgment in
part and dissent in part.
I
I concur in the Court’s judgment reversing the District
Court’s decision to uphold 11 of the 12 districts at issue in
this case—House Districts 63, 69, 70, 71, 74, 77, 80, 89, 90,
92, and 95. I do not agree, however, with the Court’s deci-
sion to leave open the question whether race predominated
in those districts and, thus, whether they are subject to
strict scrutiny. Ante, at 12–13. Appellees (hereinafter
State) concede that the legislature intentionally drew all
12 districts as majority-black districts. See, e.g., Brief for
Appellees 1 (“[T]he legislature sought to achieve a [black
voting-age population] of at least 55% in adjusting the
lines of the 12 majority-minority districts”). That conces-
sion, in my view, mandates strict scrutiny as to each
2 BETHUNE-HILL v. VIRGINIA STATE BD. OF ELECTIONS
Opinion of THOMAS, J.
district. See Bush v. Vera, 517 U.S. 952, 1000 (1996)
(THOMAS, J., concurring in judgment) (A State’s “conces-
sion that it intentionally created majority-minority dis-
tricts [i]s sufficient to show that race was a predominant,
motivating factor in its redistricting”); League of United
Latin American Citizens v. Perry, 548 U.S. 399, 517 (2006)
(LULAC) (Scalia, J., concurring in judgment in part and
dissenting in part) (“[W]hen a legislature intentionally
creates a majority-minority district, race is necessarily its
predominant motivation and strict scrutiny is therefore
triggered”). I would therefore hold that the District Court
must apply strict scrutiny to Districts 63, 69, 70, 71, 74,
77, 80, 89, 90, 92, and 95 on remand.
II
I disagree with the Court’s judgment with respect to the
remaining district, District 75. The majority affirms the
District Court’s holding that District 75 is subject to strict
scrutiny. With this I agree, because, as with the other 11
districts, the State conceded that it intentionally drew
District 75 as a majority-black district.
I disagree, however, with the majority’s determination
that District 75 satisfies strict scrutiny. This Court has
held that a State may draw distinctions among its citizens
based on race only when it “is pursuing a compelling state
interest” and has chosen “narrowly tailored” means to
accomplish that interest. Shaw v. Hunt, 517 U.S. 899,
908 (1996) (internal quotation marks omitted). The State
asserts that it used race in drawing District 75 to further
a “compelling interest in complying with Section 5 of the
[Voting Rights Act of 1965].” Brief for Appellees 50.1 And
it argues that, based on its “good-faith functional analysis”
——————
1 It
is unclear from the record whether the State sought to justify its
use of race on other grounds. I would leave it to the District Court to
evaluate in the first instance any other asserted compelling interest,
including whether such interest has been forfeited.
Cite as: 580 U. S. ____ (2017) 3
Opinion of THOMAS, J.
of the district, it narrowly tailored its use of race to
achieve that interest. Id., at 56. In my view, the State
has neither asserted a compelling state interest nor nar-
rowly tailored its use of race.
A
As an initial matter, the majority errs by “assum[ing],
without deciding, that the State’s interest in complying
with the Voting Rights Act was compelling.” Ante, at 13.
To be sure, this Court has previously assumed that a State
has a compelling interest in complying with the Voting
Rights Act. But it has done so only in cases in which it
has not upheld the redistricting plan at issue. See, e.g.,
Miller v. Johnson, 515 U.S. 900, 921 (1995) (leaving open
the question “[w]hether or not in some cases compliance
with the [Voting Rights] Act, standing alone, can provide a
compelling interest independent of any interest in remedy-
ing past discrimination”).2 This Court has never, before
today, assumed a compelling state interest while uphold-
ing a state redistricting plan. Indeed, I know of no other
——————
2 See also Shaw v. Hunt, 517 U.S. 899, 911 (1996) (“In Miller, we
expressly left open the question whether under the proper circumstances
compliance with the Voting Rights Act, on its own, could be a compel-
ling [state] interest . . . . Here once again we do not reach that
question because we find that creating an additional majority-black
district was not required under a correct reading of §5”); id., at 915
(“We assume, arguendo, for the purpose of resolving this suit, that
compliance with §2 could be a compelling interest” but hold that the
remedy “is not narrowly tailored to the asserted end”); Bush v. Vera, 517
U.S. 952, 977, 979 (1996) (plurality opinion) (“[W]e assume without
deciding that compliance with [the Voting Rights Act], as interpreted
by our precedents, can be a compelling state interest” but hold that the
districts at issue are not “narrowly tailored” to achieve that interest
(citation omitted)); Alabama Legislative Black Caucus v. Alabama, 575
U. S. ___, ___ (2015) (slip op., at 23) (“[W]e do not here decide whether
. . . continued compliance with §5 remains a compelling interest”
because “we conclude that the District Court and the legislature asked
the wrong question with respect to narrow tailoring”).
4 BETHUNE-HILL v. VIRGINIA STATE BD. OF ELECTIONS
Opinion of THOMAS, J.
case, in any context, in which the Court has assumed
away part of the State’s burden to justify its intentional
use of race. This should not be the first. I would hold that
complying with §5 of the Voting Rights Act is not a com-
pelling interest.
“[C]ompliance with federal antidiscrimination laws
cannot justify race-based districting where the challenged
district was not reasonably necessary under a constitu­
tional reading and application of those laws.” Id., at 921
(emphasis added). More than a decade ago, I joined Jus-
tice Scalia’s opinion in LULAC, which noted that this
Court had “upheld the constitutionality of §5 as a proper
exercise of Congress’s authority under §2 of the Fifteenth
Amendment to enforce that Amendment’s prohibition on
the denial or abridgment of the right to vote.” 548 U.S.,
at 518. I therefore agreed that, “[i]n the proper case, . . . a
covered jurisdiction may have a compelling interest in
complying with §5.” Id., at 519.
I have since concluded that §5 is “unconstitutional.”
Northwest Austin Municipal Util. Dist. No. One v. Holder,
557 U.S. 193, 216 (2009) (THOMAS, J., concurring in
judgment in part and dissenting in part). “[T]he violence,
intimidation, and subterfuge that led Congress to pass §5
and this Court to uphold it no longer remains,” id., at 229,
so §5 “can no longer be justified as an appropriate mecha-
nism for enforcement of the Fifteenth Amendment,” id., at
216. Because, in my view, §5 is unconstitutional, I would
hold that a State does not have a compelling interest in
complying with it.
B
Even if compliance with §5 were a compelling interest,
the State failed to narrowly tailor its use of race to further
that interest.
Cite as: 580 U. S. ____ (2017) 5
Opinion of THOMAS, J.
1
This Court has explained that “[a]ny preference based
on racial or ethnic criteria must necessarily receive a most
searching examination.” Wygant v. Jackson Bd. of Ed.,
476 U.S. 267, 273 (1986) (plurality opinion) (internal
quotation marks omitted); accord, Adarand Constructors,
Inc. v. Peña, 515 U.S. 200, 223 (1995); Grutter v. Bol­
linger, 539 U.S. 306, 378 (2003) (Rehnquist, C. J., dissent-
ing). This exacting scrutiny makes sense because
“[d]iscrimination on the basis of race” is “odious in all
aspects.” Rose v. Mitchell, 443 U.S. 545, 555 (1979).
Accordingly, a State’s use of race must bear “ ‘the most
exact connection’ ” to the compelling state interest.
Wygant, supra, at 280 (opinion of Powell, J.). In the con-
text of redistricting, the redistricting map must, “at a
minimum,” actually “remedy the anticipated violation” or
“achieve compliance” with the Voting Rights Act. Shaw,
517 U.S., at 916.
I have serious doubts about the Court’s standard for
narrow tailoring, as characterized today and in Alabama
Legislative Black Caucus v. Alabama, 575 U. S. ___ (2015).
Relying on Alabama, the majority explains that narrow
tailoring in the redistricting context requires “only that
the legislature have a strong basis in evidence in support
of the (race-based) choice that it has made.” Ante, at 14
(internal quotation marks omitted). That standard “does
not demand that a State’s actions actually be necessary to
achieve a compelling state interest in order to be constitu-
tionally valid.” Alabama, supra, at ___ (slip op., at 22)
(internal quotation marks omitted); see also ante, at 14.
Instead, under that standard, a state legislature needs
only “good reasons to believe” that the use of race is re-
quired, even if the use of race is not “actually . . . neces-
sary.” Alabama, supra, at ___ (slip op., at 22) (internal
quotation marks omitted).
That approach to narrow tailoring—deferring to a
6 BETHUNE-HILL v. VIRGINIA STATE BD. OF ELECTIONS
Opinion of THOMAS, J.
State’s belief that it has good reasons to use race—is
“strict” in name only. To the extent the Court applies
Alabama to dilute the well-settled standard established by
our precedents, I demur.
2
Applying the proper narrow-tailoring standard for state
classifications based on race, I conclude that the State did
not narrowly tailor its use of race to comply with §5. As
the majority recognizes, §5 requires a state redistricting
plan to maintain the black population’s ability to elect the
candidate of its choice in the district at issue—in other
words, the State must “avoid retrogression” in the new
district. Ante, at 14.
The majority observes that the redistricting plan’s
architect, Delegate Chris Jones, performed a “functional
analysis” in deciding that District 75 required a 55% black
voting-age population—as opposed to some other percent-
age—to avoid retrogression. Ibid. The Court notes that,
in arriving at the 55% threshold, Delegate Jones consid-
ered turnout rates, the results of the primary and general
elections in 2005, and the district’s “large population of
disenfranchised black prisoners.” Ante, at 15. He also met
with the incumbent delegate for District 75 “probably half
a dozen times” and “discussed the district with incum-
bents from other majority-black districts.” Ante, at 14–15
(internal quotation marks omitted). Those efforts add up,
in the majority’s view, to a “careful assessment of local
conditions and structures.” Ante, at 15.
I do not agree that those efforts satisfy narrow tailoring.
Delegate Jones admitted that he was “not aware” of “any
retrogress[ion] analysis” performed by “h[im] or any per-
sons that worked with him in the development of the
[redistricting] plan.” App. 288–289. Instead, he merely
“look[ed] at” the “percentage of black population and the
percentage of black voting age population,” “looked at
Cite as: 580 U. S. ____ (2017) 7
Opinion of THOMAS, J.
what happened over the last 10 year period given the
existing population and demographic shifts,” and “tried to
restore back” the levels of black voting-age population
from the previous maps. Id., at 290. That approach was
misguided, because §5 “does not require maintaining the
same population percentages in majority-minority dis-
tricts as in the prior plan.” Alabama, supra, at ___ (slip
op., at 20). And in any event, that back-of-the-envelope
calculation does not qualify as rigorous analysis. I do not
think we would permit so imprecise an approach with
regard to any other instance of racial discrimination.
The other evidence cited by the majority is similarly
weak. The majority points to the “ ‘half a dozen’ ” meetings
between Delegate Jones and the incumbent delegate for
District 75, ante, at 14, but it is not apparent from the
record whether District 75’s incumbent is the current
black population’s candidate of choice. Moreover, the
incumbent delegate may well have wanted her district to
be electorally safer than the Voting Rights Act requires. It
also is not obvious to me that Delegate Jones was seeking
to avoid retrogression in District 75 when he met with
incumbent delegates from other majority-black districts.
Ibid. In my view, those efforts fall far short of establish-
ing that a 55% black voting-age population bears a more
“ ‘exact connection’ ” to the State’s interest than any alter-
native percentage. Wygant, supra, at 279 (opinion of
Powell, J.). Accordingly, I would hold that the State failed
to narrowly tailor its use of race to avoid retrogression in
District 75.
* * *
In reaching these conclusions, I recognize that this
Court is at least as responsible as the state legislature for
these racially gerrymandered districts. As explained
above, this Court has repeatedly failed to decide whether
compliance with the Voting Rights Act is a compelling
8 BETHUNE-HILL v. VIRGINIA STATE BD. OF ELECTIONS
Opinion of THOMAS, J.
governmental interest. See supra, at 3, and n. 2. Indeed,
this Court has refused even to decide whether §5 is consti-
tutional, despite having twice taken cases to decide that
question. Compare Juris. Statement in Northwest Austin,
O. T. 2008, No. 08–322, p. i (presenting the question
“[w]hether . . . the §5 preclearance requirement can be
applied as a valid exercise of Congress’s remedial powers
under the Reconstruction Amendments”), and Shelby
County v. Holder, 568 U.S. 1006 (2012) (granting certio-
rari on the question “[w]hether Congress’ decision in 2006 to
reauthorize Section 5 of the Voting Rights Act under the
pre-existing coverage formula of Section 4(b) . . . violated
the Tenth Amendment and Article IV of the United States
Constitution”), with Northwest Austin, 557 U.S., at 197
(holding that the district at issue was eligible to seek
bailout under the Voting Rights Act and therefore “not
reach[ing] the constitutionality of §5”), and Shelby County
v. Holder, 570 U. S. ___, ___ (2013) (slip op., at 24) (hold-
ing only that the coverage formula under §4(b) was uncon-
stitutional and “issu[ing] no holding on §5 itself ”). As a
result, the Court has left the State without clear guidance
about its redistricting obligations under §5.
This Court has put the State in a similar bind with
respect to narrow tailoring. To comply with §5, a State
necessarily must make a deliberate and precise effort to
sort its citizens on the basis of their race. But that result
is fundamentally at odds with our “color-blind” Constitu-
tion, which “neither knows nor tolerates classes among
citizens.” Plessy v. Ferguson, 163 U.S. 537, 559 (1896)
(Harlan, J., dissenting). That contradiction illustrates the
perversity of the Court’s jurisprudence in this area as well
as the uncomfortable position in which the State might
find itself.
Despite my sympathy for the State, I cannot ignore the
Constitution’s clear prohibition on state-sponsored race
discrimination. “The Constitution abhors classifications
Cite as: 580 U. S. ____ (2017) 9
Opinion of THOMAS, J.
based on race, not only because those classifications can
harm favored races or are based on illegitimate motives,
but also because every time the government places citi-
zens on racial registers . . . , it demeans us all.” Grutter,
539 U.S., at 353 (THOMAS, J., concurring in part and
dissenting in part). This prohibition was “[p]urchased at
the price of immeasurable human suffering,” and it “re-
flects our Nation’s understanding that such classifications
ultimately have a destructive impact on the individual and
our society.” Adarand Constructors, 515 U.S., at 240
(THOMAS, J., concurring in part and concurring in judg-
ment). I respectfully dissent from the Court’s judgment as
to District 75.