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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