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

[Rick Hasen]

In the second to last paragraph, the word "precinct" should be "pretext."


On 3/25/15 9:15 AM, Rick Hasen wrote:
>
>
>     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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> Court <http://electionlawblog.org/?cat=29>,Voting Rights Act 
> <http://electionlawblog.org/?cat=15>
>
> -- 
> 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
> rhasen at law.uci.edu
> http://www.law.uci.edu/faculty/full-time/hasen/
> http://electionlawblog.org
>
>
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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
rhasen at law.uci.edu
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org

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