Wednesday, November 26, 2014

Packing and Cracking Alabama’s Black Voters

On November 12, 2014, the U.S. Supreme Court heard oral arguments in Alabama Democratic Conference v. Alabama and Alabama Legislative Black Caucus v. Alabama. These two consolidated Voting Rights cases were brought by a group of white Democrats and black legislators. They contend that Alabama's Republican-dominated legislature redrew the state's legislative districts in ways that diluted the voting strength of racial minorities by packing them into districts that were already heavily populated by minorities. The challengers also claim that the redistricting deprived minority voters of the ability to influence elections in racially integrated districts where they were not majorities. These actions, they claimed, violated the Voting Rights Act and the Equal Protection Clause of the U.S. Constitution.

The 2010 census showed that populations of several majority black districts in Alabama shrank significantly. To achieve an equal distribution of the population, the districts had to be redrawn to incorporate more residents. In 2010 the GOP took control of both houses of Alabama’s legislature. In 2012 the Republican majority redrew the state’s voting districts. When the legislators reconfigured district lines, they added large numbers of African Americans from neighboring districts to districts that were already heavily populated with minorities. This made other districts much whiter and more likely to elect Republican candidates. The legislators also fashioned district lines in ways that minimized the influence of African American voters in racially integrated districts where they were the minority.

The challengers argued that the legislature engaged in “packing,” a tactic that dilutes minority voting strength by putting as many minority voters into as few districts as possible to minimize the number of representatives they could elect. The legislators also engaged in “cracking,” a practice which dilutes minority voting strength by spreading minority communities across several election districts. The evidence showed that in one Montgomery County district that was 72 percent minority, lawmakers drew lines that added 15,785 people, 99.8 percent of whom were minorities. They also removed white voters from the district. The minority population in that district rose to more than 75 percent. Statewide, approximately one-fifth of minority voters were packed into districts that already had democratic majorities. At the same time, black residents were removed from racially integrated districts where their votes could have made a difference in deciding elections.

Republican lawmakers claimed that because many of the districts had lost residents, Section 5 of the Voting Rights Act required the state to maintain the same number of majority-minority districts, with roughly the same percentage of minority voters. Democratic and African-American lawmakers argued that the Section 5 rationale was a pretext for racial Gerrymandering. The legislature went beyond what was needed to avoid retrogression. (Changes that reduce minority groups’ opportunities to elect candidates of their choice.)[1]

The Alabama case went to trial in 2013 in a three-judge federal district court. The critical question was whether the legislature relied primarily on race, or partisanship, when it redrew its districts. The majority ruled for Alabama finding 2-to-1 that state legislators had not relied too heavily on race in redrawing the districts. The case was appealed to the U.S. Supreme Court.

The Wall Street Journal reported that the Court’s four liberal justices appeared to be sympathetic to the challengers. Chief Justice John Roberts was skeptical. He said states are in a difficult situation when they redistrict because they must take race into account to comply with the Voting Rights Act but cannot give race too much weight as that would make it the predominant factor.

Another observer wrote that “Justice Anthony Kennedy, who may be the key vote in this case, did not see Alabama as having drawn its lines to comply with the Act. Instead, he saw Alabama as engaging in a partisan gerrymander, something which may be distasteful but is not the basis for the Court to strike down a plan as a racial gerrymander.” If this observation is accurate, the case could end up in a 5-4 vote upholding Alabama’s plan.

The evidence showed that race was the primary consideration in Alabama’s redistricting plan. Section 5 compliance was a pretext for a racial gerrymander. The legislature deliberately diluted black voting strength. The redistricting plans went well beyond what was necessary to avoid retrogression. However, given the trend in voting rights cases, the majority is likely to conclude that partisan considerations outweighed race. If this happens it will be another example of the majority’s unrelenting efforts to undermine the Voting rights Act. The rights of African American voters to have an equal opportunity to participate in the political process will be subordinated to the partisan schemes of Alabama’s Republican majority.

[1] In cases where race is the predominant factor the redistricting plan must be subjected to the “strict scrutiny.” Under this standard a racially motivated redistricting can be justified only when it has a “compelling justification” and the means chosen are “narrowly tailored” to achieving a legitimate governmental interest. The Supreme Court has found that compliance with Section 5 is a “compelling” state interest but it has struck down plans that went beyond what was necessary to avoid “retrogression.”

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