Kavanaugh Questions Trump Lawyer on Race in Redistricting Cases

Racial Predominance in Redistricting

• 💡 Justice Kavanaugh questioned the use of the term "predominance" in racial gerrymandering cases, suggesting it implies race does not predominate if a district drawn based on race is reasonably configured and compact.
• 🎯 The court's test is whether race-neutral principles are subordinated to race. If traditional principles are not followed, it's a clear subordination.
• 🔑 However, even if a district is drawn to be a specific percentage Black and adheres to traditional principles, it can still be considered racial subordination according to cases like Bethune Hill and Cooper.

State's Use of Race in Redistricting

• ⚖️ The state can consider race when drawing districts, especially when race-neutral principles highly correlate with race.
• 🧩 The argument is that without a standard like "predominance," every partisan gerrymander could become a racial gerrymander.
• ⚠️ If race predominates, it means the district is not compact or reasonably configured, or the state specifically aimed to draw a district with a certain racial percentage.

Political Objectives and Traditional Principles

• 📌 A new argument presented is the consideration of political objectives as a traditional, race-neutral principle in redistricting.
• 🚀 This concept, while not previously squarely considered by the court, is argued to be consistent with allowing other permissible factors that correlate with race.
• 🧠 It also serves as a form of constitutional avoidance, preventing potential constitutional problems.

Section Two of the Voting Rights Act

• 📈 The court's test in Jingles (1985) may need modification due to intervening Supreme Court decisions like Shaw and Miller on predominance.
• 📊 The position is that Section 2 of the Voting Rights Act is not unconstitutional, particularly as applied to redistricting, if it requires the predominant use of race rather than intentional use.
• 📊 If Section 2 were construed differently, it could be unconstitutional due to temporal issues and its scope.

Polarization and Minority Representation

• 🔍 Differences in voting patterns between White Democrats and Black Democrats can trigger findings of polarization.
• 💬 The key is to determine if the minority group could have won the district based on race-neutral grounds and polarization.
• ✅ Even if Section 2 were eliminated, a significant majority of Black representatives in Congress are in districts not protected by Section 2, indicating that proposed changes would not eliminate Black representation.