Alabama redistricting case with implications for North Carolina

by Sharon McCloskey, NC Policy Watch, November 13, 2014.

The U.S. Supreme Court yesterday wrestled with a thorny redistricting issue, the outcome of which may bear directly upon a similar case pending in North Carolina’s highest court.

In Alabama Legislative Black Caucus v. Alabama (consolidated with Alabama Democratic Conference v. Alabama), the justices considered whether a state plan that packed African-American voters into districts where they already had political control constituted an unlawful racial gerrymander.

The Alabama Democratic Conference and the Alabama Legislative Black Caucus contended that, by packing majorities of African-Americans into a smaller number of voting districts, their state’s plan segregated them politically and diminished their ability to influence elections elsewhere in the state.

But lawmakers blamed the very law designed to protect minority voters, saying that provisions of the Voting Rights Act required them to create such majorities.

The case presented a new twist on established voting principles, and from reports on questioning at oral argument, the justices had no clear sense of how to unravel it.

“You realize, I assume, that you’re making the argument that the opponents of black plaintiffs used to make here,” Justice Antonin Scalia asked Richard Pildes, one of the lawyers for the challengers.

Scalia and Chief Justice John Roberts sympathized with the state, indicating that it was painted into a corner by Voting Rights Act requirements.

“If Alabama had reduced [instead of increased] the number of minority voters in majority­-minority districts in any significant way, the Attorney General would have come down on them like a ton of bricks,” Roberts said.

The court’s swingman, Justice Anthony Kennedy, set off in a different direction, wondering if the Alabama plan might just be another iteration of partisan, and not racial, gerrymandering.

And Justices Sonia Sotomayor and Stephen Breyer questioned what the remedy could even be if they sent Alabama home to create a new plan.

Similar questions are likewise playing out in the redistricting challenge still pending before the North Carolina Supreme Court.

That’s not a surprise, given that both states adopted plans designed with the help and direction of mapmakers enlisted by the Washington D.C. – based Republican State Leadership Committee.

As in Alabama, the challengers here contend that lawmakers used race too often, when it wasn’t necessary, and too much — packing black voters into districts until their numbers reached beyond the 50 percent mark, even though the African-American populations there, while still in the minority, had already been exerting political influence and electing their candidates of choice.

But the state claimed that the Voting Rights Act all but required as much.

“We do not think it’s a racial gerrymander to draw a 50 percent district,” said Tom Farr, one of the attorneys representing the lawmakers, during arguments at trial in 2013. “It’s not a racial gerrymander to draw districts with a consciousness of race. If that were true, all of these districts would be racial gerrymanders.”

But the groups challenging the plan here countered that drawing such a district is required only to create voting opportunity where it does not already exist — where, as the U.S. Supreme Court said in the last go-round of North Carolina redistricting litigation, the majority is voting “sufficiently as a bloc . . . to defeat the minority’s preferred candidate.”

That simply was not the case in many of the districts redrawn by the Republican-controlled legislature in 2011, plaintiffs’ attorneys Edwin Speas and Anita Earls argued. Instead of creating minority opportunity where it did not exist, the mapmakers drew districts where opportunity had been flourishing — where black voters, though still in the minority, had been consistently electing their candidates of choice — and simply added more, pulling black voters across precinct, district and county lines to reach that 50 percent mark and beyond, up as high as 57 percent, and leaving whiter districts in their wake.

The trial court ultimately sided with the state and upheld the 2011 plan. The parties argued the appeal of that ruling before the state Supreme Court in January of this year and are still awaiting a decision.

Whether a state’s plan is an unconstitutional racial gerrymander turns upon whether lawmakers considered race as the predominant factor when redrawing voting maps and whether they had a compelling justification to do so.

Justices of this U.S. Supreme Court have already revealed themselves to be no fans of racial classifications.

“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” Roberts famously wrote  in a 2007 school segregation case.

And while likewise leery of the continued need for the Voting Rights Act, that might not stop Roberts and Scalia from falling back upon such classifications when called for by the Act – at least based upon their questions at argument in the Alabama case.

But the court may not even need to reach that determination – finding instead for example that Alabama drew its map to benefit Republicans – a permissible partisan gerrymander under established case law.

That race and politics are too closely intertwined to make that distinction in Alabama and elsewhere in the South – as election law expert Rick Hasen argues in this essay – may not matter.

Or the court could find that Alabama’s asserted attempt to comply with the Voting Rights Act sufficed as a justification for overloading African-Americans into a smaller number of voting districts.

Justice Elena Kagan seemed to reject that position.

“In no interpretation” of the Act’s Section 5, she said, “does a 76 percent district have to stay a 76 percent district when circumstances change and when the ability to elect candidates of one’s choice does not require it.”

Kagan likely won’t find much support for that conclusion among her conservative colleagues. 

And the irony of that outcome, coming in a case out of Alabama, is noteworthy.

The high court’s last venture into voting rights came in an Alabama case, too. 

In Shelby County v. Holder, the state argued that because voting conditions there had changed over the years, federal preclearance of changes made to its voting laws as required under the Act was no longer necessary. 

A majority of the justices accepted that argument and in 2013 essentially gutted preclearance under the Act.

But Alabama is now ignoring changed current conditions and falling back upon the Act for justification. 

That’s a bridge too far, many legal experts argue. 

“Over the course of the last three decades, African-American voter registration and turnout in the State has not only increased, it has surpassed white voter participation,” a group of political scientists wrote in a friend-of-the-court brief submitted to the court.

Those numbers belie any claimed interest in equalizing minority voting opportunity in Alabama.

A decision from the Supreme Court is expected before term-end in June.

http://www.ncpolicywatch.com/2014/11/13/at-the-supreme-court-alabama-redistricting-case-with-implications-for-north-carolina/