The Supreme Court has long ignored Justice Felix Frankfurter’s warning to stay out of the political thicket. It regularly hears challenges to redistricting cases, not to mention lots of other types of election cases, raising issues from the one-person, one-vote rule to vote dilution under the Voting Rights Act, to racial and partisan gerrymandering claims.
The Court’s decision to hear a part of a challenge to Alabama’s state legislative redistricting plan enacted after the 2010 census, in Alabama Legislative Black Caucus v. Alabama and Alabama Democratic Conference v. Alabama, set for argument on November 12, brings all of these issues together in a seemingly technical but high-stakes case, showing the artificiality of separating issues of race and party in redistricting, featuring a bold role reversal in political parties’ use of racial gerrymandering claims, and offering a surprising new threat to the constitutionality of the Voting Rights Act.
The state of Alabama, like many states, lets its political branches decide on the shape of legislative districts. Unsurprisingly, when legislators get to draw their own lines and choose their own voters, you see a lot of self-dealing. Lines typically are drawn to favor the political party in power and to protect incumbents.
But legislative redistricting is subject to a number of judicially imposed limitations, in addition to whatever limitations state law may impose, limitations which must be understood in order to follow the dispute in the Alabama case.
To begin with, since the Supreme Court’s one-person, one-vote cases in the 1960s, legislative districts cannot have great disparities in the number of people in them because disparities give voters in smaller-populated districts greater voting power in violation of the Fourteenth Amendment’s Equal Protection Clause. This rule has required states to redistrict after each census to equalize the district populations that shift over each decade. In contrast to congressional redistricting, in which there may be no deviation from strict population equality, the Court has allowed state and local redistricting to deviate somewhat from strict equality for legitimate reasons, such as preserving city or county boundaries. For a long time the Court seemed to allow up to a ten-percent population deviation. However, the Supreme Court’s summary affirmation in a 2004 case has been understood to prevent state and local redistricting plans with deviations from strict population equality done for bad reasons, such as to help one’s political party.
States cannot intentionally dilute the votes of some voters on the basis of race under the Fourteenth and Fifteenth Amendment. The Court has not yet developed a test to determine when it is impermissible to dilute the votes of some voters on the basis of party; thus, while partisan gerrymandering claims may still be brought to court, they inevitably fail.
Under Section 2 of the Voting Rights Act, states must create districts in which racial minorities have the ability to elect candidates of their choice, “majority-minority districts” under certain conditions, beginning with evidence that the minority group is sufficiently large and geographically compact for it to be possible to draw a majority-minority district, and proof of “racially polarized voting,” meaning that whites and minority voters tend to vote for different candidates.
Although Section 2 requires jurisdictions with large minority populations to take race into account in drawing district lines, in a series of cases beginning with a 1993 case, the Supreme Court has held it is a violation of the Equal Protection Clause to make race the “predominant factor” in redistricting. When a state makes consideration of race paramount over other traditional redistricting goals without a compelling justification, the state’s redistricting plan is an unconstitutional racial gerrymander.
After the 2010 census, the Alabama legislature, now controlled by Republicans, drew a redistricting plan that contained the same number of majority-minority Senate districts and one additional majority-minority House district. Because of population shifts and declines, as well as the composition of the original 2001 districts, the African-American districts were the most underpopulated of all the districts, meaning that many voters had to be shifted into these districts to comply with one-person, one-vote requirements.
The state legislative leaders in charge of redistricting set as a goal a deviation in population of no more than two percent across districts. Further, the leaders instructed the consultant charged with redistricting to maintain not only the same number of majority-minority districts in the two state houses but also the same percentage of African Americans within each district, a decision which turns out to be a key issue in the case before the Supreme Court. The leaders and consultant indicated they kept the same percentage of African-American voters in each majority-minority district in order to comply with Section 5 of the Voting Rights Act’s non-retrogression principle.
The result of these two commands to the redistricting consultant, a population deviation of no more than two percent across districts and preserving not just the number of majority-minority districts but also the percentage of minority members in each jurisdiction, led to the shifting of many more African Americans into these majority-minority districts. The upshot of these changes in the context of Alabama was to pack more of the state’s African Americans, the state’s most reliable Democratic voters, into fewer districts, thereby strengthening Republican voting power in districts throughout the rest of the state.
Black and Democratic legislators, voters, and groups brought a number of challenges to the state redistricting plan, including a vote dilution challenge under Section 2 of the Voting Rights Act and racial and partisan gerrymandering claims. One issue in the case before the Supreme Court is whether one set of plaintiffs in these two consolidated cases has standing to raise its racial gerrymandering claims. Those plaintiffs are represented by noted voting rights professor Richard Pildes, among others.
A three-judge federal court divided two to one on the racial gerrymandering claim. The two judges in the majority, both Republican appointees, sided with Alabama, stating that the Republican post-2010 census plan was just partisan politics no different than what the Democrats did in the 2000 round of redistricting: “This record offers no reason to conclude that the rules for redistricting were turned upside down when Republicans gained control of the Alabama Legislature. The parties have switched sides, but the law that governs their disputes remains the same. We refuse to read the Voting Rights Act and the Fourteenth and Fifteenth Amendments as mandating some kind of ‘Democratic candidate protection program.’”
The dissenting judge, a Democratic appointee, rejected this argument, seeing a “cruel irony”: “Even as it was asking the Supreme Court to strike down the requirement of preclearance for failure to speak to current conditions, the State of Alabama was relying on racial quotas with absolutely no evidence that they had anything to do with current conditions, and seeking to justify those quotas with the very provision it was helping to render inert.”
On the specific question whether the Alabama redistricting plan was an unconstitutional racial gerrymander, the lower-court majority held it was not: the state’s predominant motive in redistricting was complying with the two-percent population deviation maximum as part of the one-person, one-vote principle, not dividing voters on the basis of race. Further, the court held that any division of voters on the basis of race was justified by the state’s requirement to comply with the non-retrogression principle of Section 5 of the Voting Rights Act. The dissent disagreed, arguing that race was the predominant factor in redistricting, and Section 5 did not require the maintenance of the same percentage of minority voters in each majority-minority district. Further, since Shelby County eliminated the preclearance requirement for Alabama, compliance with Section 5 could no longer be a compelling interest to justify a racial gerrymander.
The Supreme Court took the two appeals in the case and agreed to hear only the racial gerrymandering challenges; thus, the Court will not be deciding if the “packing” of African-American voters into these districts constituted vote dilution in violation of Section 2 of the Voting Rights Act or any other claims heard in the lower court.
The Alabama redistricting cases show the artificiality of separating issues of race and party, especially in the South, where race correlates so closely with political party. Were African-American Democrats packed into these districts to discriminate against Democrats or against African Americans (or both)? One person’s racial gerrymander is another’s partisan gerrymander. But the Court has to fit this case into the right “box,” and the lens with which it views the case could determine not only the permissibility of Alabama’s redistricting, but ultimately the scope and fate of the Voting Rights Act itself.
NYC Wins When Everyone Can Vote!
Michael H. Drucker
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