[EL] Alabama redistricting

[Nicholas Stephanopoulos]

To put some numbers on what Alabama could do in a future plan,
unconstrained by Section 5:

1. There's currently one AL district (House 85) with a minority CVAP% below
50% that clearly elects a minority-preferred candidate. It potentially
could be eliminated.
2. There's currently one AL district (Senate 18) that's more noncompact
than the NC district struck down as a racial gerrymander in *Shaw*. It also
potentially could be eliminated.
3. There are currently *thirteen* AL districts (Senate 18, 19, 26, House
19, 52, 53, 54, 55, 60, 76, 77, 78, 83) whose minority populations are more
heterogeneous than the TX district struck down in *LULAC*. They potentially
could be eliminated too.

On Wed, Mar 25, 2015 at 3:22 PM, Rob Richie <rr at fairvote.org> wrote:

> Thanks for highlighting your article, Nick.
>
> To inject another point in the conversation, one can also show that
> without 2, Democrats could easily be wiped out of representation in several
> southern states. We had a good mapmaker work to build congressional
> districts in several southern states using Dave's Redistricting App. We had
> him carry several "missions": to do the best simulation of California-type
> criteria; to do the best Repulican gerrymander if they  didn't have to draw
>  black-majority districts; to do the best plan for seeking equitable
> representation of voters by party and race (usually loking incredibly
> gerrymandered); and sample multi-winner district plans with fair
> representation that regularly enhance opportunities for equitable
> representation while maintaining  traditional redistricting standards..
>
> It was telling that it was easy to eliminate  Democratic representation
> with mostly compact, "non-gerrymandered looking" districts -- see plans
> that do this in Alabama (all districts at least 60% Republican), Louisiana
>  Mississippi (all districts at least 56% Republican)and South Carolina (all
> districts at least 55% Republican) at
> http://www.fairvote.org/assets/Uploads/Redistricting-Reform-in-the-South.pdf
>
> Rob
>
> ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
> Rob Richie
> Executive Director, FairVote
> 6930 Carroll Avenue, Suite 610
> Takoma Park, MD 20912
> rr at fairvote.org  (301) 270-4616  http://www.fairvote.org
>
> Thank you for considering a donation
> <https://org.salsalabs.com/o/2495/p/salsa/donation/common/public/?donate_page_KEY=5643> to
> support our reform vision <https://www.youtube.com/watch?v=U50uJohIw4c>.
> *FairVote Facebook <https://www.facebook.com/FairVoteReform>*   *FairVote
> Twitter <https://twitter.com/fairvote>*  My Twitter
> <https://twitter.com/rob_richie>
>
>
> On Wed, Mar 25, 2015 at 3:42 PM, Nicholas Stephanopoulos <
> nicholas.stephanopoulos at gmail.com> wrote:
>
>> 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.
>>>
>>>   <Mail Attachment.png>
>>> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D71257&title=Opinion%20Analysis%3A%20A%20Small%20Victory%20for%20Minority%20Voters%2C%20or%20a%20Case%20with%20%E2%80%9CProfound%E2%80%9D%20Constitutional%20Implications%3F&description=>
>>>   Posted in redistricting <http://electionlawblog.org/?cat=6>, Supreme
>>> 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 92697-8000949.824.3072 - office949.824.0495 - faxrhasen at law.uci.eduhttp://www.law.uci.edu/faculty/full-time/hasen/http://electionlawblog.org
>>>
>>>
>>>
>>> _______________________________________________
>>> Law-election mailing listLaw-election at department-lists.uci.eduhttp://department-lists.uci.edu/mailman/listinfo/law-election
>>>
>>>
>>> --
>>> 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
>>>
>>>
>>>
>>> _______________________________________________
>>> Law-election mailing listLaw-election at department-lists.uci.eduhttp://department-lists.uci.edu/mailman/listinfo/law-election
>>>
>>>
>>> --
>>> 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
>>>
>>>  _______________________________________________
>>> Law-election mailing list
>>> Law-election at department-lists.uci.edu
>>> http://department-lists.uci.edu/mailman/listinfo/law-election
>>>
>>>
>>>
>>> _______________________________________________
>>> Law-election mailing list
>>> Law-election at department-lists.uci.edu
>>> http://department-lists.uci.edu/mailman/listinfo/law-election
>>>
>>
>>
>>
>> --
>> 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
>>
>> _______________________________________________
>> Law-election mailing list
>> Law-election at department-lists.uci.edu
>> http://department-lists.uci.edu/mailman/listinfo/law-election
>>
>
>


-- 
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
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20150325/4ec34a69/attachment.html>