Thursday, March 26, 2015
Yesterday, the United States Supreme Court, in a 5-4 decision, sided with black legislators and reversed and remanded a decision upholding Alabama’s 2012 redistricting plan against a racial gerrymandering challenge. This was a victory for the plaintiffs, the Alabama Legislative Black Caucus and the Alabama Democratic Conference, who had argued that the State of Alabama had violated Equal Protection Clause of the Fourteenth Amendment by packing black voters into certain districts, thus allegedly limiting their voting strength. Alabama claimed that they were required to undertake the plan they chose to avoid violating Section 5 of the Voting Rights Act of 1965.
The lower court sided with the state in deciding that race “was not the predominant motivating factor” in Alabama’s redistricting decisions as an undifferentiated whole. The lower court went further and said that even if race were the predominant factor, the state’s use of race was narrowly tailored to serve the compelling state interest of complying with Section 5's non retrogression standard (which requires that covered jurisdictions not create a disadvantage for minority voters in any voting law changes). The district court also found that one of the parties, the Democratic Caucus, lacked standing to bring this lawsuit.
The Supreme Court vacated these findings. Justice Breyer, writing for Justice Kennedy and the liberal wing of the Court, determined that the district court erred in its conclusion that racial criteria had not dominated the state as a whole. The Court stressed that redistricting claims must be analyzed on the basis of individual districts and that the plaintiffs had brought such district-specific claims. The Court also determined that the Caucus should be provided an opportunity to demonstrate it’s standing rather than the lower court dismissing the Caucus sua sponte.
The Court also disagreed with the district court’s determination that race was not a predominant factor in the creation of any individual district. The lower court held that the state’s goal of reaching equal population in districts – a requirement of the redistricting process under the “one person, one vote” doctrine – was the main factor that predominated the redistricting process. The Court found that this consideration was more appropriately categorized as a background consideration against redistricting takes place rather than an indicator of whether race improperly predominated this redistricting process.
Finally, the Court found that the district court erred in finding alternatively that the use of race here satisfied strict scrutiny. The district court focused too narrowly on Alabama’s goal of maintaining a particular percentage of minority voting strength in particular districts. The Court held that the appropriate standard under Section 5 is that the covered jurisdiction must “maintain a minority’s ability to elect a preferred candidate of choice” without regard to any specific number or percentage.
Justice Scalia dissented for the remainder of the conservative wing of the Court. Justice Scalia argued the plaintiffs incorrectly alleged a statewide racial vote dilution claim and that this decision effectively gave plaintiffs a second chance for their lawsuit. While joining Scalia, Justice Clarence Thomas wrote separately to stress that this case was just the latest in the Court’s error-riddled voting rights jurisprudence.
These consolidated cases are yet another installment in the “disastrous misadventure” of this Court’s voting rights jurisprudence. We have somehow arrived at a place where the parties agree that Alabama’s legislative districts should be fine-tuned to achieve some “optimal” result with respect to black voting power; the only disagreement is about what percentage of blacks should be placed in those optimized districts. This is nothing more than a fight over the “best” racial quota.
This opinion provides both a useful (if not groundbreaking) clarification on this area of law and, more importantly, a rare voting rights victory for plaintiffs—though the victory may very well be short lived in the face of the retrial and possible re-redistricting by the legislature.
Yet this case turned the tables on the Court’s “racial gerrymandering” doctrine. Unlike prior lawsuits in this vein, where Republican partisans complained about constitutionally inappropriate use of race to forestall changes in the creation of majority-minority districts that benefitted Democrats, we have here black Democratic politicians arguing the inappropriateness of Republicans use of racial gerrymander. Moreover, the state’s ultimate claim that its efforts to comply with Section 5 are a defense to the racial gerrymandering charge provides another twist. This state of affairs is exacerbated by the fact that this litigation takes place in the shadow of Shelby County, AL v Holder where the Court championed the idea that racial politics had changed—for the better—in the South.
In a sense, this case puts into relief the paradox of how to view race in redistricting – whether these cases should be perceived as politicians using race as a factor to achieve political ends or whether politicians are using politics as a means to achieve racial dominance. While the line between the two is difficult to parse (and may ultimately be a distinction without a difference), I would suggest that it is helpful to think of these cases from a perspective related to the long history of long-standing white-dominated political structures that exist in states like Alabama.
Though formal de jure segregation is long dead, this case reminds us that we nonetheless confront present segregated realities that were created by those past practices of discrimination. These patterns coupled with conflicting conceptions of the appropriate role of race in redistricting ultimately drive this sort of litigation. Yet, unlike Justice Thomas, who would see any race-conscious remedy provided in response to this problem as an illegitimate and unconstitutional “quota,” I believe that the use of the racial gerrymandering claim by the plaintiffs here represent an appropriate shield against the majoritarian dominance they claim to suffer. This use of racial gerrymander doctrine may well be the best alternative to the (limited) doctrinal tools currently provided in voting rights law to prevent majoritarian domination.