Tuesday, March 31, 2015

Voting Rights Act May Not be Used as a Pretext for Racial Gerrymandering

Supreme Court Strikes down Alabama’s Racial Gerrymander[1]

On March 25, 2015, the Supreme Court issued its decision in Alabama Democratic Conference v. Alabama and Alabama Legislative Black Caucus v. Alabama. The ruling in these consolidated cases reversed a lower court’s decision that Alabama’s legislature had not engaged in racial gerrymandering when it redrew electoral districts in 2012. The Supreme Court also found that there was strong and “possibly overwhelming,” evidence that race was the primary motivation in establishing the boundaries of some of some of the districts. This decision makes it harder for Republican-dominated legislatures to use compliance with Section 5 of the Voting Rights Act as a pretext to secure partisan advantage.

The cases were brought by a group of white Democrats and black legislators. They contended that Alabama's Republican-dominated legislature redrew the state's electoral districts in ways that diluted the voting strength of racial minorities by packing them into districts that were already heavily populated by minorities.

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. The Republican majority redrew the state’s voting districts in 2012. The legislators added large numbers of African Americans 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 drew district lines in ways that minimized the influence of African American voters in 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. They also alleged “cracking,” which dilutes minority voting strength by spreading minority communities across several election districts.

Republican lawmakers argued that because many districts had lost residents, cases interpreting 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 District Court held that racial criteria had not predominated when Alabama’s electoral districts were redrawn. In doing so, it considered the entire State as an “undifferentiated whole.” The Supreme Court reversed the trial court’s ruling. It held that a racial gerrymandering claim requires an examination of individual voting districts using a district-by-district analysis. The trial court’s consideration of the entire state as a unit of measure was legally erroneous.

The Court also found that Alabama erroneously believed Section 5 of the Voting Rights Act required the legislature to pack more African-American voters into districts to keep the same percentage of African Americans in each majority-minority district. The Court also rejected arguments that racial gerrymandering cannot occur when a state’s goal is maintaining equally populated districts.

The trial court found that even if Alabama subordinated traditional districting principles to racial considerations, the racial gerrymandering claims failed because the redistricting would satisfy strict scrutiny.[2] The Supreme Court reversed that ruling. The proper approach would be a determination of the extent to which existing minority percentages had to be preserved to maintain the minority voters’ ability to elect the candidate of their choice. However, the Court left open the question whether compliance with the Voting Rights Act’s retrogression prohibitions could be deemed a “compelling” state interest that would satisfy strict scrutiny.

The Supreme Court vacated the trial court’s finding that plaintiffs lacked standing to assert their claims. At minimum, the plaintiffs should have been allowed to produce evidence that they had suffered an injury traceable to the actions of the defendants. The case was remanded to the District Court for reconsideration in light of the Supreme Court’s findings and analysis.

The decision in Alabama Democratic Conference is a victory for voting rights. Packing minority and other Democratic voters into fewer districts is a tactic that Republican-dominated legislatures have used to gain electoral advantages. The Supreme Court’s ruling prevents states from using retrogression avoidance as a pretext for racial gerrymandering. However, the battle is far from over. Other gerrymandering cases are pending and voter suppression tactics are being aggressively pursued by state legislatures.

[1] Leland Ware, Louis L. Redding Professor of Law & Public Policy, University of Delaware
[2] Laws that classify on the basis of race must satisfy the strict scrutiny standard. Under this exacting test, a legislature must have enacted a law to advance a "compelling governmental interest" and the law must be “narrowly tailored” achieving that interest. The test was used to strike down segregation laws in the 1960s.

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