As we prepare for the upcoming round of 2020 redistricting, the opinions in Bethune-Hill v. Virginia State Board of Elections and Cooper v. Harris make clear that what constitutes unlawful racial gerrymandering will prove critical. Although states and localities can act intentionally to preserve and create majority-minority districts, they must do so in a way that complies with the Constitution. First, and put simply, race cannot predominate over every other consideration. And, second, unlawful racial gerrymandering cannot be justified as an attempt to achieve partisan ends.
The decisions provide a workable approach for addressing allegations of unconstitutional racial gerrymanders, while at the same time rejecting the proposition that the intentional creation of a majority-minority election district automatically triggers strict scrutiny. This is clear from the sum and substance of the majority opinions, and from the explicit language in the separate opinions of Justices Samuel Alito and Clarence Thomas in Bethune-Hill and that of Thomas in Cooper. A contrary result would have imperiled legitimate attempts by state legislatures to create majority-minority districts….