Supreme Court Weighs Race Challenge to Virginia Voting Map

WASHINGTON — The Supreme Court heard arguments on Monday in a voting-rights case with several unusual twists, including disagreements among Virginia officials about who was entitled to represent the state.

The case, a race-discrimination challenge to parts of the voting map for Virginia’s House of Delegates, was making its second appearance at the court. In 2017, the justices instructed a three-judge Federal District Court to take a fresh look at whether racial consideration had played too large a role in drawing the legislative map for the state’s House of Delegates.

The case concerns 11 voting districts drawn after the 2010 census, each with at least a 55 percent population of black residents of voting age. Democratic voters in those districts sued, saying that lawmakers had run afoul of the Constitution by packing too many black voters into the districts, diminishing their voting power.

The district court, which had initially upheld the districts, struck them down last year.

The Supreme Court has called for very close scrutiny of a state’s action when race was shown to be the predominant reason in creating legislative districts. (Next week, the court will hear two cases on the separate and open question of whether extreme partisan gerrymandering, in which the political party in power draws maps to give an advantage to its candidates, can ever cross a constitutional line.)

Marc E. Elias, a lawyer for the challengers in the Virginia case, said that “a one-size-fits-all, 55 percent racial rule” was unlawful. While minority groups must be given the chance to elect their preferred candidates, he said, a uniform statewide threshold was not appropriate.

“If the state creates a 55 percent blanket rule because of how African-Americans in a rural area vote on the border of North Carolina and then generalized that to urban centers throughout the commonwealth,” he said, “then it has engaged in racial stereotyping.”

Paul D. Clement, representing the House of Delegates, said 55 percent was “exactly the right number” to ensure that black voters did not lose voting power.

The case, Virginia House of Delegates v. Bethune-Hill, No. 18-281, featured an unusual squabble among state officials.

Toby J. Heytens, Virginia’s solicitor general, said the House was not authorized to appeal to the Supreme Court from the district court’s decision. That decision belonged to the state’s attorney general, and he had decided not to appeal, Mr. Heytens said.

“What this court is essentially being asked to do,” he told the justices, “is to referee a dispute within the Virginia state government about whether Virginia should appeal that decision to this court. But Virginia law has been clear since before the Civil War that the state’s attorney general has the exclusive authority to make that sort of litigation decision.”

Justice Stephen G. Breyer suggested that politics can play a role in litigation strategy. The House of Delegates is controlled by Republicans, while Virginia’s governor and attorney general are Democrats.

Mr. Heytens said the court should not be quick to ascribe political motives to state officials. “Positing that elected officials who are empowered to exercise government power will make decisions that way,” he said, “is inconsistent with the presumption of good faith that this court affords to government.”

Chief Justice John G. Roberts Jr. responded that judges were allowed to use common sense. “I haven’t seen the case,” he said, “where the Democratic legislature has challenged an alleged gerrymander because it was too favorable to Democrats or vice versa.”

Morgan L. Ratner, a lawyer for the federal government, agreed that the House of Delegates did not have standing to pursue a Supreme Court appeal.

“The House as an institution isn’t harmed by changes to individual district lines,” she said, “and while states can authorize legislatures to represent them in court, Virginia hasn’t done so.”

Justice Samuel A. Alito Jr. responded that only slight direct harm to the House might be enough to establish standing, like the need to order new stationery.

Justice Elena Kagan said states could resolve for themselves the question of who will represent them in the Supreme Court. “It’s a matter of state law, really,” she said. “There are many states that have responded to this exact circumstance by allowing the legislature to proceed.”

“And other states, like Virginia, that have not,” she said. “And in some sense, the question of whether somebody should be able to get to court in this partisan, divided circumstance is one that a state can decide for itself.”