This morning, the Supreme Court issued its decision in the combined Alabama redistricting cases – Alabama Legislative Black Caucus v. Alabama and Alabama Democratic Conference vs. Alabama. PLF filed this amicus brief before the Court. The plaintiffs in these cases challenged Alabama’s 2010 redistricting plan as an unconstitutional racial gerrymander. Under the Supreme Court’s racial gerrymandering cases, the plaintiffs had to prove that race was the “predominant factor” in the legislature’s redistricting considerations. The lower court ruled in favor of Alabama. It concluded that compliance with the Constitution’s one-person, one-vote requirement – not race – was the predominant factor in the redistricting acts.
The Supreme Court, in a 5-4 opinion authored by Justice Breyer, vacated the lower court’s opinion, but did not reach the merits of the racial gerrymandering claims. Instead, the decision turned on a procedural issue – namely, whether the plaintiffs had adequately presented to the district court their argument that particular districts were racially gerrymandered, as opposed to the state as a whole. The Supreme Court held that only individual districts can be gerrymandered, and found – unlike the district court – that the plaintiffs had indeed made such a claim. Therefore, it sent the case back to the lower court for reconsideration the individual district claims.
Justice Breyer also rejected the district court’s position that compliance with one-person, one-vote was the “predominant factor” in Alabama’s redistricting decision. The Court held instead that the one-person, one-vote requirement can never be the “predominant factor” because it is simply a “background principle” that is “taken as a given” in redistricting. Since it is not a factor to be balanced along with other considerations (like contiguity, compactness, incumbency protection, etc.), but a constitutional requirement, the Court found that Alabama cannot avoid liability for a racial gerrymander based simply on an overarching compliance with one-person, one-vote.
Finally, the majority took issue with the district court’s interpretation of Section 5 of the Voting Rights Act. At the time of the redistricting, Alabama was “covered” under Section 5, and required to submit its redistricting plans for “preclearance” by the federal government. In order to gain preclearance, Alabama had to show that the plan would not cause a “retrogression” in the position of minority voters. This means that the redistricting plan could not place black voters in a worse position than they had been under the prior districts. The Alabama Legislature avoided retrogression by ensuring the black population of every district remained the same under the new district lines. The Supreme Court held that this was improper. It found that Section 5 in fact does not require that the black population of each district remain the same, so long as the resulting districts still allow black voters to elect “the candidates of their choice.” According to the Supreme Court, a voting district that had its black population decrease from 70% to 65% would not violate Section 5’s prohibition on retrogression, because black voters could still elect their candidate of choice.
Justice Scalia dissented on the procedural issue, arguing that the district-by-district claims had not been properly presented in the district court. But Justice Thomas’ dissent went to the very heart of the problem with race-based redistricting. Echoing PLF’s argument in its amicus brief, Justice Thomas said that this dispute is really a symptom of the Court’s troublesome decisions that require States to engage in pernicious racial balancing in order to comply with federal law. As he put it, “few devices could be better designed to exacerbate racial tensions than the consciously segregated districting system currently being constructed in the name of the Voting Rights Act.” The fact that this case was about how much racial balancing is permissible, as opposed to whether any should be allowed, illustrates how far afield the Supreme Court’s redistricting cases have gone.
Today’s opinion will not have much long-term effect on the Supreme Court’s redistricting precedent, especially because the preclearance provision of Section 5 is no longer operative after the Supreme Court’s decision in Shelby County v. Holder. But unfortunately, these cases demonstrate that race-based redistricting as a result of the Voting Rights Act, for the time being, is here to stay.