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New ruling due on racial gerrymandering

The Supreme Court, returning to the long-running issue of the use of race in drawing up new election districts for members of state legislatures, agreed on Monday to weigh the legality of “packing” minority voters into districts where they already are in political control, reducing their chance of having influence elsewhere.

The Court accepted for review two appeals from Alabama, both challenging decisions by a federal district court that upheld (by a split two-to-one vote) a new boundary map that kept the  same number of state senate and state house districts that previously had majorities of African-American voters, but added to those majorities in almost every district.  Sponsors of the plan insisted they were doing so to obey their obligations to protect minority voters’ political strength under federal voting rights law, but the challengers argued that this was an unconstitutional use of racial gerrymandering.

Although the appeals in Alabama Legislative Black Caucus v. Alabama and Alabama Democratic Conference v. Alabama each raised two questions, the Court in accepting them for review at its next Term said it would rule only on one issue in each — essentially, the same question about the legality of racial “packing” into minority-dominated districts.

The new case goes back to maps that were drawn up by a state court after the 1990 federal Census, when the legislature could not agreed on new redistricting plans.  Those maps included twenty-seven house districts and eight senate districts that each had African-American majorities, and thus were able to elect candidates of their choice.

After the 2000 Census, the legislature passed new plans, which maintained those twenty-seven house and eight senate districts with minorities in the majority.  The same numbers were preserved in maps drawn after the 2010 Census but, this time, the legislature chose to include the minority population of those districts so that they would contain minority dominance by “super-majorities.”

In other words, the minority population of the house districts reached as high as 76.8% and of senate districts as high as 75.22%.

Challenging those new maps in their Supreme Court appeals, the black and Democratic groups argued that the new redistricting “necessarily increases the political segregation of African Americans and reduces their ability to influence the outcome of legislative district in the rest of the state.”

The appeals were in the form of mandatory appeals, meaning that the Supreme Court essentially had to accept them for review, if it had jurisdiction over them, as it found it did.  The cases will be heard and decided in the next Term, starting in October.

These were the only cases added to the Court’s merits docket for the fall.  The Court also asked the U.S. Solicitor General for the federal government’s views on whether the Court should overrule its 1964 decision in Brulotte v. Thys Co., which declared that it is never legal for royalty payments to continue to be made after the patent involved has expired.  The Brulotte decision has been widely criticized by commentators and patent experts as not reflecting the competitive reality in modern patent licensing arrangements.  The Court will decide whether to take on the case of Kimble v. Marvel Enterprises, Inc. after it receives the government’s views.  The case grows out of a patent infringement dispute over a toy that mimics the Spider-Man of comic-book and movie fame.

In another order, the Court continued its unbroken pattern of the past four years of refusing to hear new cases testing the scope of the Second Amendment right to have a gun for personal use.  The new case of Kwong v. DeBlasio was a test of whether it violates the Second Amendment for a state or city to impose a licensing fee of $340 for a three-year period in order to keep a handgun in one’s home.

The Court also denied, without explanation, several other significant issues:  whether reporters have a legal “privilege” against being forced to disclose the identity of confidential news sources — an issue raised by New York Times reporter James Risen (Risen v. United States); whether it violates the “privileges or immunities” of a businessman who wants to operate a ferry service to be denied a permit to compete with an existing service on a public lake in Washington State (Courtney v. Danner); and whether social workers for a local government agency have legal immunity from claims that they acted unconstitutionally in removing children from a home without a court order (Campbell-Postingale v. Kovacic).

Recommended Citation: Lyle Denniston, New ruling due on racial gerrymandering, SCOTUSblog (Jun. 2, 2014, 3:22 PM),