[EL] Opinion Analysis: A Small Victory for Minority Voters, or a Case with “Profound” Constitutional Implications?

Wed Mar 25 09:15:16 PDT 2015

    Opinion Analysis: A Small Victory for Minority Voters, or a Case
    with “Profound” Constitutional Implications?
    <http://electionlawblog.org/?p=71257>

Posted onMarch 25, 2015 9:14 am 
<http://electionlawblog.org/?p=71257>byRick Hasen 
<http://electionlawblog.org/?author=3>

/[cross-posted at SCOTUSBlog.]/

It is easy to read the Supreme Court’s5-4 decision 
<http://www.supremecourt.gov/opinions/14pdf/13-895_o7jq.pdf>in /Alabama 
Legislative Black Caucus v. Alabama/ 
<http://www.scotusblog.com/case-files/cases/alabama-legislative-black-caucus-v-alabama/> and 
/Alabama Democratic Conference v. Alabama/ 
<http://www.scotusblog.com/case-files/cases/alabama-democratic-conference-v-alabama/>as 
a mostly inconsequential case giving a small, and perhaps only 
temporary, victory for minority voters in a dispute over the redrawing 
of Alabama’s legislative districts after the 2010 census. Indeed, 
although the Supreme Court sent this “racial gerrymandering” case back 
for a wide and broad rehearing before a three-judge court, Alabama will 
be free to junk its plan and start over with one that may achieve the 
same political ends and keep it out of legal trouble. But Justice Scalia 
in his dissent sees the majority as issuing “a sweeping holding that 
will have profound implications for the constitutional ideal of one 
person, one vote, for the future of the Voting Rights Act of 1965, and 
for the primacy of the State in managing its own elections.” Time will 
tell if Justice Scalia’s warning against the implications of what he 
termed a “fantastical” majority opinion is more than typical Scalian 
hyperbole. And we may know soon enough as these issues get addressed in 
racial gerrymandering cases fromVirginia 
<http://www.washingtonpost.com/local/virginia-politics/court-throws-out-virginia-congressional-map/2014/10/07/97fb866a-4e56-11e4-8c24-487e92bc997b_story.htm>,North 
Carolina 
<http://www.southerncoalition.org/north-carolina-supreme-court-upholds-racially-gerrymandered-districts/>and 
elsewhere

* * *

As explained inthis case preview 
<http://www.scotusblog.com/2014/10/argument-preview-racial-gerrymandering-partisan-politics-and-the-future-of-the-voting-rights-act/>, 
this case concerns a challenge to state legislative districts drawn by 
the Alabama Legislature after the 2010 census. The legislature, newly 
controlled by Republicans, drew a redistricting plan that contained the 
same number of majority-minority Senate districts and one additional 
majority-minority House district compared to the 1990s plan drawn by a 
court and the 2000s plan drawn by a Democratic legislature. Because of 
population shifts and declines, as well as the composition of the 
original 2001 districts, the African-American districts were the most 
underpopulated of all the districts, meaning that many voters had to be 
shifted into these districts to comply with “one person, one vote” 
requirements.

The state legislative leaders in charge of redistricting set as a goal a 
deviation in population of no more than two percent across districts. 
Further, the leaders instructed the consultant charged with 
redistricting to maintain not only the same number of majority-minority 
districts in the two state houses but also the same percentage of 
African Americans /within/ each district. The leaders and consultant 
indicated they kept the same percentage of African-American voters in 
each majority-minority district in order to comply with the 
non-retrogression principle of Section 5 of the Voting Rights Act.

The result of these two commands led to the shifting of many more 
African Americans into these majority-minority districts. The upshot of 
these changes in the context of Alabama was to pack more of the state’s 
African Americans, the state’s most reliable Democratic voters, into 
fewer districts, thereby strengthening Republican voting power in 
districts throughout the rest of the state.

Black and Democratic legislators, voters, and groups brought a number of 
challenges to the state redistricting plan, including a vote dilution 
challenge under Section 2 of the Voting Rights Act and racial and 
partisan gerrymandering claims. A three-judge federal court divided two 
to one 
<https://ecf.almd.uscourts.gov/cgi-bin/show_public_doc?2012cv0691-203> on the 
racial gerrymandering claim, the only claim currently before the Supreme 
Court. To win on a racial gerrymandering claim 
<http://scholar.google.com/scholar_case?case=2057233072475851470&hl=en&as_sdt=6&as_vis=1&oi=scholarr>, 
the plaintiffs need to show that race was the “predominant factor” in 
redistricting, more important than traditional redistricting principles. 
If the state can show it complied with traditional districting 
principles or even that its intention was purely partisan, not racial, 
the state would win.

The lower court majority sided with Alabama, stating that the Republican 
post-2010 census plan was just partisan politics no different than what 
the Democrats did in the 2000 round of redistricting. On the specific 
question whether the Alabama redistricting plan was an unconstitutional 
racial gerrymander, the lower court majority held it was not: the 
state’s predominant motive in redistricting was complying with the 
two-percent population deviation maximum as part of the “one person, one 
vote” principle, not dividing voters on the basis of race. Further, the 
court held that any division of voters on the basis of race was 
justified by the state’s requirement to comply with the 
non-retrogression principle of Section 5 of the Voting Rights Act.

The dissent disagreed on all counts, arguing that race was the 
predominant factor in redistricting, and Section 5 did not require the 
maintenance of the same percentage of minority voters in each 
majority-minority district. Further, since the Supreme Court’s 2013 
decision in /Shelby County v. Holder 
<http://www.scotusblog.com/case-files/cases/shelby-county-v-holder/>,///holding 
the preclearance formula unconstitutional, eliminated the preclearance 
requirement for Alabama, compliance with Section 5 could no longer be a 
compelling interest to justify a racial gerrymander.

* * *

In the Supreme Court, Justice Kennedy sided with the more liberal 
Justices, over the objections of the four more conservative Justices, to 
rule against Alabama and send the case back for a do-over. Much of the 
dispute between the majority and the dissent concerned issues likely to 
be unimportant in other voting cases: whether one of the sets of 
plaintiffs had standing and whether a key argument of the parties was 
preserved on appeal. Justice Breyer’s majority opinion even included an 
appendix to show where an argument was raised in the court below.

The majority said that the lower court erred in considering whether 
Alabama’s legislative redistricting plan/as a whole/was an 
unconstitutional racial gerrymander. The majority sent the case back to 
a lower court to consider the issue on a/district-by-district/basis. It 
said that the lower court could consider new evidence as well as other 
claims which the Supreme Court did not reach, such as the one person, 
one vote challenge.

But the Supreme Court majority did more than simply send the case back 
for a new hearing. It very strongly suggested that at least some of the 
districts were unconstitutional gerrymanders. It began by taking away 
two of the state’s strongest arguments.

First, the Court said Alabama was wrong to the extent it believed that 
Section 5 of the Voting Rights Act required Alabama to pack more 
African-American voters into districts in order to keep the same 
percentage of African-Americans in each majority-minority district. This 
was a misreading of what Section 5 required and such a reading could 
actually hurt minority voters.

Second, the Court said that Alabama could not point to its desire to 
have more equally populated districts as its real predominant factor in 
redistricting. In other words, the majority rejected the argument that 
the state could not engage in racial gerrymandering if its first order 
of the day was to maintain equally populated districts. The majority 
took compliance with this one person, one vote out of the equation, 
saying this was something that was a “background” rule to be 
considered/before/determining whether race is a predominant factor. It 
calls into mindDaniel Lowenstein’s critique 
<http://www.jstor.org/discover/10.2307/1229324?sid=21106239815023&uid=2&uid=4>of 
the predominant factor test from/Shaw v. Reno/as nonsensical when it 
comes to how legislatures decide how to redistrict.

In the end, the majority all but instructed the lower court to find that 
at least some of the districts were unconstitutional racial 
gerrymanders: “For example, once the legislature’s ‘equal population’ 
objectives are put to the side—i.e., seen as a background principle—then 
there is strong, perhaps overwhelming evidence that race did predominate 
as a factor when the legislature drew the boundaries of Senate District 
26, the one district the parties have discussed here in depth.”

The Court then left open the question whether compliance with Section 5 
could be a compelling interest to justify what would be an otherwise 
unconstitutional racial gerrymander and, no doubt at the urging of 
Justice Kennedy, added this sentence: “Finally, we note that our 
discussion in this section is limited to correcting the District Court’s 
misapplication of the ‘predominance’ test for strict scrutiny discussed 
in/Miller/, 515 U. S., at 916. It does not express a view on the 
question of whether the intentional use of race in redistricting, even 
in the absence of proof that traditional districting principles were 
subordinated to race, triggers strict scrutiny. See/Vera/, 517 U. S., at 
996 (KENNEDY, J., concurring).”

* * *

Justice Scalia, who wrote the principal dissent, argued mostly on the 
question of standing and on whether the district-by-district issue was 
preserved on appeal. He believed that the case was not properly 
litigated or the issues preserved: “This disposition is based, it seems, 
on the implicit premise that plaintiffs only plead legally correct 
theories. That is a silly premise. We should not reward the practice of 
litigation by obfuscation, especially when we are dealing with a 
well-established legal claim that numerous plaintiffs have successfully 
brought in the past.” Despite his opening hyperbolic statement, Justice 
Scalia offered very little to explain what parade of horribles would 
result from the interpretation of the racial gerrymandering claim in 
this way. Justice Thomas, while joining (along with the Chief Justice 
and Justice Alito) in Justice Scalia’s dissent, dissented separately as 
well, to express his disagreement more broadly with Voting Rights Act 
jurisprudence and the permissible consideration of race in redistricting.

* * *

What is the significance of today’s/Alabama/ruling? It seems likely on 
remand that at least some of Alabama’s districts will be found to be 
racial gerrymanders. This means that some of these districts will have 
to be redrawn to “unpack” some minority voters from these districts. But 
do not be surprised if Alabama preempts the lawsuit by drawing new 
districts which are less racially conscious but still constitute a 
partisan gerrymander which helps the Republicans have greater control 
over the Alabama legislative districts. As I have noted, lurking in the 
background of this case is the “race or party 
<http://harvardlawreview.org/2014/01/race-or-party-how-courts-should-think-about-republican-efforts-to-make-it-harder-to-vote-in-north-carolina-and-elsewhere/>” 
problem: with most Democrats in Alabama being African Americans and most 
Republicans being white, how does one determine 
<http://www.slate.com/articles/news_and_politics/jurisprudence/2014/11/alabama_redistricting_supreme_court_did_legislators_redraw_district_lines.html>whether 
a predominant factor in gerrymandering is race or party?

On that score, the case may have somewhat broader implications even if 
not the earthshattering ones promised by Justice Scalia. Although 
Republican states which pack minority voters into districts can no 
longer claim to do so to comply with Section 5 of the Voting Rights Act 
(thanks to the/Shelby County/case), they still may claim to do so to 
comply with Section 2 of the Act. Indeed, asProfessor Justin Levitt has 
shown <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2487426>, 
minority packing and reliance on the Voting Rights Act has become a 
familiar tool for Republican legislatures looking to gain advantage by 
packing likely Democratic voters into a smaller number of districts. 
Many Democrats and minority voters have challenged such plans as 
unconstitutional racial gerrymanders.

Today’s/Alabama/decision gives these challengers a new tool, making it 
harder for states to use compliance with the Voting Rights Act as a 
precinct to secure partisan advantage. All in all, this may help stop 
some egregious gerrymanders, but there will still be plenty of ways for 
states to draw district lines for partisan advantage without running 
afoul of the Voting Rights Act. And depending upon how the Court 
decidesthe Arizona redistricting case 
<http://www.scotusblog.com/case-files/cases/arizona-state-legislature-v-arizona-independent-redistricting-commission/?wpmp_switcher=desktop>later 
this term, states may have even a freer hand to draw lines for nakedly 
political purposes.

So chalk this up as a small, albeit real, victory not only for minority 
voters but also for irony. The “racial gerrymander” cause of action, 
which was the basis for conservatives to challenge the creation of extra 
majority-minority districts under the Voting Rights Act, has not become 
a tool by those who hate the cause of action to protect minority voting 
rights.

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-- 
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
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http://electionlawblog.org

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