We have previously blogged about the latest redistricting controversy to reach the Supreme Court. In these two combined cases, styled Alabama Legislative Black Caucus v. Alabama and Alabama Democratic Conference v. Alabama, the plaintiffs contend that the redistricting plan for the Alabama Senate and House of Representatives is an unconstitutional racial gerrymander and unlawfully dilutes black voting strength in violation of Section 2 of the Voting Rights Act. The three-judge district court rejected both claims. As to the racial gerrymandering claim, the majority held that the plaintiffs had failed to prove that race was the “predominant factor” in the redistricting decision. Alternatively, the court found that even if race was the predominant factor, Alabama’s use of race satisfied strict scrutiny because it was narrowly tailored to comply with Section 5 of the Voting Rights Act.
Today, PLF filed an amicus curiae brief arguing that the Court should discard the requirement that plaintiffs prove race was the “predominant factor” in redistricting. We argue that the predominant factor standard is inconsistent with the Supreme Court’s repeated holdings that race may not be a factor in any official decisionmaking. Unfortunately, the prevailing law has permitted consideration of race to become legitimate in redistricting debates, so long as it is coupled with “traditional” districting criteria such as contiguity and incumbency protection. This is directly contrary to the Equal Protection Clause’s mandate that government must treat people without respect to race. Because it is undisputed that Alabama used race at least to comply with Section 5, we argue that the Court should apply strict scrutiny to the redistricting acts.
But these cases placed Alabama in a difficult position. Under the preclearance formula struck down in Shelby County v. Holder, but still in effect when these acts were passed, Alabama had to ensure that the new district lines did not result in “retrogression” before the law could go into effect. And doing nothing was not an option, because the state would have been in violation of the “one-person, one-vote” principle on account of large population differences between districts. So Alabama had to consider race to gain federal preclearance, and it had to redistrict to avoid violating the Constitution. Thus, we argue that Alabama’s use of race satisfies strict scrutiny because it was narrowly tailored to the state’s compelling interest in redistricting.
Our brief also points out the larger issue raised by these and similar cases: the conflict between the Voting Rights Act and the Equal Protection Clause. Even in the post-Shelby County era, states are constantly required to consider race by the Voting Rights Act. In a future case, the Court will have to reconcile the requirements of Section 2 with its frequent rejection of racial balancing laws. We hope that it will eventually declare Section 2 unconstitutional as applied to legislative reapportionment. But in this case, we ask only that the Court apply strict scrutiny to all redistricting plans drawn with racial considerations.