[EL] Alabama redistricting

[Nicholas Stephanopoulos]

Mike's question is exactly the one I tried to answer in this article
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2336749>: how large is
the gap between Section 2 and Section 5, i.e., what kinds of plans are
possible after *Shelby County* that weren't on the table before? My
pessimistic answer is that, actually, quite a few more plans, many of them
even more egregious partisan gerrymanders, are now possible. More
specifically, Alabama in all likelihood could now eliminate several
majority-minority districts without running afoul of Section 2. So in the
next few months, Alabama may give us a sneak preview of what the 2020
redistricting cycle will look like. And I fear it won't be a very
attractive preview.

Nick

On Wed, Mar 25, 2015 at 2:32 PM, Pitts, Michael Jude <mjpitts at iupui.edu>
wrote:

>  I have a question about Alabama that maybe folks who have better
> knowledge of the State’s politics will be able to answer.  As I understand
> it from a big-picture perspective, when the current plan was drawn, the
> Republican strategy was, essentially, to “pack” the current minority
> ability to elect districts with minority voters.  Let’s assume that as a
> result of today’s decision Alabama decides to draw new redistricting
> plans.  Now, with Section 5 no longer in operation, there is not a mandate
> that those ability to elect districts be preserved.  So, what is the
> possibility that Republicans could draw a plan that is even more
> advantageous for Republicans by engaging in a bit of retrogression that
> would have previously been blocked by Section 5?  (Recognizing, of course,
> that such retrogression might open up a Section 2 claim and also that it
> may be difficult for Republicans to have any greater advantage than they
> already do in the state legislature.)  I don’t think this question is
> totally out of left field as I vaguely recall Tom DeLay saying in the
> context of the re-redistricting of Texas in the early 2000s that he could
> have drawn an even more Republican plan if Section 5 had not stood in his
> way.
>
>  Best,
> Mike
>
>
>
>
>
>
>  On Mar 25, 2015, at 12:28 PM, Rick Hasen <rhasen at law.uci.edu> wrote:
>
>  And in the last sentence "not" should be "now"
>
> haste makes waste
>
>
> On 3/25/15 9:24 AM, Rick Hasen wrote:
>
> 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 on March 25, 2015 9:14 am <http://electionlawblog.org/?p=71257> by
>  Rick Hasen <http://electionlawblog.org/?author=3>
>
> *[cross-posted at SCOTUSBlog.]*
>
> It is easy to read the Supreme Court’s 5-4 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 “fantasticalâ€
> majority opinion is more than typical Scalian hyperbole. And we may know
> soon enough as these issues get addressed in racial gerrymandering cases
> from Virginia
> <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 in this 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 voteâ€
> 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 mind Daniel
> 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.â€
>
> 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).â€
>
> * * *
>
> 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.â€
> 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/>â€
> 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 decides the 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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>   Posted in redistricting <http://electionlawblog.org/?cat=6>, Supreme
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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 92697-8000949.824.3072 - office949.824.0495 - faxrhasen at law.uci.eduhttp://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 92697-8000949.824.3072 - office949.824.0495 - faxrhasen at law.uci.eduhttp://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 92697-8000949.824.3072 - office949.824.0495 - faxrhasen at law.uci.eduhttp://www.law.uci.edu/faculty/full-time/hasen/http://electionlawblog.org
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-- 
Nicholas O. Stephanopoulos
Assistant Professor of Law
University of Chicago Law School
nsteph at uchicago.edu
(773) 702-4226
http://www.law.uchicago.edu/faculty/stephanopoulos
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