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 (including the Reynolds v. Sims case out of Alabama), 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 affirmance in the 2004 Larios v. Cox 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.
Further, 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 the 1993 case of Shaw v. Reno, 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.
Finally, until 2013 jurisdictions like Alabama were subject to federal oversight of their voting laws. Under Section 5 of the Voting Rights Act, Alabama could not make a change in its redistricting laws (or other voting rules) without convincing either the Department of Justice or a three-judge federal court in Washington, D.C., that its changes did not have the purpose, and would not have the effect, of making minority voters worse off (this is known as the “non-retrogression principle”). In the context of redistricting, non-retrogression has generally been understood as a requirement for covered jurisdictions not to decrease the number of majority-minority voting districts. In 2013, the Supreme Court in Shelby County v. Holder rejected as constitutionally outdated the formula under which Alabama was subject to preclearance.
In the 1990s, the Alabama legislature and governor could not agree on a redistricting plan for carving up state legislative districts, and therefore a court drew a legislative redistricting plan. The plan contained twenty-seven House districts which were “majority-minority” African-American districts and eight Senate districts which were “majority-minority” African-American districts.
In the 2000s, the Alabama legislature, controlled by Democrats, drew a state redistricting plan that contained the same number of majority-minority House and Senate districts as the 1990s plan, and also preserved the percentage of African-American voters in each of these districts. The districts were allowed to deviate in population by up to ten percent.
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 districts. 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 reliance of Democratic and African-American opponents of the Alabama redistricting on a racial gerrymandering claim is quite ironic. The cause of action initially arose in the 1993 Shaw case out of claims brought by Republicans to stop what were seen as a Democratic gerrymander in North Carolina. As expected, the partisan gerrymandering claim faltered in the lower courts, but the racial gerrymandering claim had surprising success. The racial gerrymandering claim is not based upon vote dilution but upon the “expressive harm” which the Shaw majority said came from divvying up voters on the basis of race without adequate justification.
The Court’s new racial gerrymandering standard, which evolved into a “predominant motive” test in the Miller v. Johnson case, was mostly derided by the liberals as a way of limiting minority and Democratic gains in redistricting. It was a conservative Supreme Court’s way of reining in what the Justices saw as excesses of the Department of Justice in requiring covered states to draw more majority-minority districts. Now the tables are turned, and it is liberal Democrats seeking to use the racial gerrymandering claim to stop a Republican gerrymander.
It is equally ironic that the state of Alabama touts its adherence to the Section 5 preclearance regime as the basis for its choice to pack so many African-American Democrats into these districts. After all, Alabama supported the challenge to preclearance in the 2013 Shelby County case (Shelby County is a county in Alabama), which held that the preclearance regime was unconstitutional as applied to states like Alabama, because it was not based upon “current conditions” showing racial discrimination in voting.
A key question before the Court is whether Section 5 required Alabama to maintain the same high percentages of minority voters in these majority-minority districts. Department of Justice guidance on the meaning of the non-retrogression standard required a broad totality of the circumstances test for deciding how large a minority population had to be in a district to be an effective majority-minority district. (Put too few minority voters in a majority-minority district and the minority-preferred candidate may lose; too many and it raises the risk of packing to minimize minority voting strength across the state.) As minority voter registration and turnout rose, the percentage of minority voters who need to be in a majority-minority district has fallen. An amicus brief from a group of political scientists points out that African-American registration and turnout rates in Alabama now meet or exceed those of white voters. With these rates of turnout and registration, it is no longer necessary to pack minority voters into a district to create an effective majority-minority district.
The state’s defense for maintaining the same percentage of minority voters in each majority-minority district is that “the Voting Rights Act made me do it.” This appears to be a common theme across Republican-dominated legislatures in this redistricting cycle, according to redistricting expert Justin Levitt in an important monograph. Republicans have a good partisan reason for this reading, which is that it may help pack reliable Democratic voters into a smaller number of districts. And Democrats have good partisan reason to resist this reading. Democrats cast Republicans’ potential misreading of the Voting Rights Act as imposing racial quotas, and it has led to a new wave of Democrat-backed racial gerrymandering claims across the country.
If the Supreme Court determines that race was the predominant factor in Alabama’s drawing of district lines, the question will arise whether making race the predominant factor was justified by compliance with Section 5 of the Voting Rights Act. The challengers, along with the federal government (in an amicus brief supporting neither side), argue that maintaining the same high percentages of African-American voters in jurisdictions was not required by Section 5 of the Voting Rights Act, even as that Act was amended in 2006 to strengthen it following the Supreme Court’s flexible reading of Section 5’s requirements in Georgia v. Ashcroft. The state contends its reading of Section 5 is correct, or at least a permissible way to comply with Section 5, a position accepted by the lower-court majority.
Beneath the surface of the briefing in the case, and perhaps explaining the reason for the federal government and Lawyers’ Committee amicus briefs urging a remand in the case for further analysis of the predominant motive of the Alabama legislature in drawing particular Alabama districts, is a fear that the Court could (1) adopt Alabama’s understanding of the Voting Rights Act as mandating the creation of these packed majority-minority districts and then (2) strike the Act itself as an unconstitutional race-based statute in violation of the Equal Protection Clause. It seems unlikely that the Court would use this case as the vehicle to reach that result, but the potential for the same Court which decided Shelby County to declare more of the Voting Rights Act unconstitutional lurks in the case’s background and appears to be making voting rights advocates nervous.
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.