[EL] Alabama redistricting

[Michael McDonald]

If the Section 2 Gingles test prongs are met – event potentially – then I doubt a legislature will do away with an existing minority-majority district.
 
The risk of retrogression lies in districts under 50% minority VAP who have elected a candidate of choice on the strength of White crossover vote. Such districts precleared under Section 5 have as little as 30% minority population. The minority communities for some of these districts could never be drawn more than 50%, a necessary condition for demonstrating a Section 2 remedy exists according to the Bartlett decision. (Note further that the implemented remedy must simply elect a candidate of choice, which can be below 50%.) Few congressional districts that fall into this crack, as most are drawn above 50% (and the few that don’t can be drawn above 50%), but there are many state legislative and local districts that have lost their protection under Section 5.
 
Figuring out how exactly many districts are at risk is a bit tricky 1) it is a monumental task to categorize all local and state legislative districts and 2) some states have adopted voting rights language into their state constitutions that may offer Section 5-like protections.
 
============
Dr. Michael P. McDonald
Associate Professor
University of Florida
Department of Political Science
234 Anderson Hall
P.O. Box 117325
Gainesville, FL 32611
 
phone:   352-273-2371 (office)
e-mail:  dr.michael.p.mcdonald at gmail.com                
web:      <http://www.electproject.org/> www.ElectProject.org 
twitter: @ElectProject
 
From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Nicholas Stephanopoulos
Sent: Wednesday, March 25, 2015 3:42 PM
To: Pitts, Michael Jude
Cc: law-election at department-lists.uci.edu
Subject: Re: [EL] Alabama redistricting
 
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 <mailto: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 <mailto: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:

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

Posted on  <http://electionlawblog.org/?p=71257> March 25, 2015 9:14 am by  <http://electionlawblog.org/?author=3> Rick Hasen
[cross-posted at SCOTUSBlog.]
It is easy to read the Supreme Court’s  <http://www.supremecourt.gov/opinions/14pdf/13-895_o7jq.pdf> 5-4 decision in  <http://www.scotusblog.com/case-files/cases/alabama-legislative-black-caucus-v-alabama/> Alabama Legislative Black Caucus v. Alabama and  <http://www.scotusblog.com/case-files/cases/alabama-democratic-conference-v-alabama/> 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 from  <http://www.washingtonpost.com/local/virginia-politics/court-throws-out-virginia-congressional-map/2014/10/07/97fb866a-4e56-11e4-8c24-487e92bc997b_story.htm> Virginia,  <http://www.southerncoalition.org/north-carolina-supreme-court-upholds-racially-gerrymandered-districts/> North Carolina and elsewhere
* * *
As explained in  <http://www.scotusblog.com/2014/10/argument-preview-racial-gerrymandering-partisan-politics-and-the-future-of-the-voting-rights-act/> this case preview, 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  <https://ecf.almd.uscourts.gov/cgi-bin/show_public_doc?2012cv0691-203> divided two to one on the racial gerrymandering claim, the only claim currently before the Supreme Court. To win on a  <http://scholar.google.com/scholar_case?case=2057233072475851470&hl=en&as_sdt=6&as_vis=1&oi=scholarr> racial gerrymandering claim, 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  <http://www.scotusblog.com/case-files/cases/shelby-county-v-holder/> 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 beforedetermining whether race is a predominant factor. It calls into mind  <http://www.jstor.org/discover/10.2307/1229324?sid=21106239815023&uid=2&uid=4> Daniel Lowenstein’s critique 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 “ <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/> race or party†problem: with most Democrats in Alabama being African Americans and most Republicans being white,  <http://www.slate.com/articles/news_and_politics/jurisprudence/2014/11/alabama_redistricting_supreme_court_did_legislators_redraw_district_lines.html> how does one determine 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 theShelby County case), they still may claim to do so to comply with Section 2 of the Act. Indeed, as <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2487426> Professor Justin Levitt has shown, 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  <http://www.scotusblog.com/case-files/cases/arizona-state-legislature-v-arizona-independent-redistricting-commission/?wpmp_switcher=desktop> the Arizona redistricting case 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  <http://electionlawblog.org/?cat=6> redistricting,  <http://electionlawblog.org/?cat=29> Supreme Court,  <http://electionlawblog.org/?cat=15> Voting Rights Act
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Rick Hasen
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UC Irvine School of Law
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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 <tel:949.824.3072>  - office
949.824.0495 <tel:949.824.0495>  - fax
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