Nov 12 6:15 PM

Alabama's racial gerrymandering goes before Supreme Court

Voter Jerry Trice fills out his ballot for a July runoff election in Decatur, Ala.
Jeronimo Nisa/AP Photo

For the second year in a row, Alabama has put the Voting Rights Act before the Supreme Court. Last year’s Shelby County v. Holder effectively struck down “preclearance,” a provision of the 1965 law that required states with long histories of racial discrimination to get federal approval before altering voting rules. “50 years later, things have changed dramatically,” wrote the court, insisting that the South’s former logic no longer applies. “The tests and devices that blocked access to the ballot have been forbidden nationwide for over 40 years.”

Now, an Alabama lawsuit over redistricting has reached the nation’s highest court. In Alabama Democratic Conference and Alabama Legislative Black Caucus v. Alabama, the justices will decide whether a 2012 redistricting plan violates the rights of African American voters.

It goes back to the 2010 election, when Republicans gained control of the state legislature for the first time since Reconstruction. The GOP now occupies the governor’s seat, every elected, statewide executive-branch office and supermajorities in both houses. The legislators in this majority are exclusively white.

As is customary, they redrew the state electoral districts for both the house and senate based on the 2010 Census. It was a straightforward effort “to preserve the status quo” — that is, the Republican regime — the state’s attorney told the Supreme Court on Wednesday.

There’s a strange alignment of interests in this case. Alabama Republicans say their new maps protect black voters by preserving majority-minority districts. Their Democratic opponents — in politics and the lawsuit — argue that dispersing rather than concentrating black voters would be the best way to safeguard political participation.

Supreme Court Justice Antonin Scalia said as much to the Democratic Conference lawyer in oral argument: “You realize, I assume, that you’re — you’re making the argument that the opponents of black plaintiffs used to make here … by requiring packing of minorities into certain districts, you’re reducing their influence statewide … that’s the argument the other side used to be making.”

Alabama is still 'one of the most polarized electorates in the nation.'

Richard Cohen

President, Southern Poverty Law Center

Redrawing lines in the South

Redistricting is acknowledged to be a partisan process, with the party that controls the statehouse exercising more influence on the drafting of new maps. But in the South and other regions of “racially polarized voting” — where whites and minorities have tended to elect vastly different candidates — partisan redistricting can resemble unlawful race-based gerrymandering. (This has recently been litigated in Texas and Virginia.)

As lawmakers do after every decennial Census, Alabama’s Republicans drew new boundaries for the state’s 105 house and 35 senate districts in 2012. They adopted a calculus to avoid infringing on the Voting Rights Act: The number of majority-black districts would stay the same, and the percentage of African Americans in a given district would closely resemble what it had been in the previous redistricting. (Between 2000 and 2010, the state’s white population decreased slightly, to 67 percent; African Americans remained stable, at just over 25 percent; and Hispanics grew to nearly 4 percent.) 

Alabama Democrats sued to undo this plan, alleging that the new districts were unlawfully based on a naked racial quota rather than African American voters’ “ability to elect” candidates of their choice. They accuse the GOP of having packed African American voters into already black-controlled districts, thereby diluting their vote elsewhere. In some cases, districts that had a black majority ended up with a black supermajority, while white districts became whiter.

Alabama's 2012 redistricting turned the majority-black senate district 26, which includes part of Montgomery, into a super-majority-black district. The white population decreased from 28 to 19.5 percent.

According to Michael Li, a lawyer at the Brennan Center for Justice, which filed a brief opposing the state of Alabama, the kinds of districting strategies that protected black voters 30 years ago may no longer be relevant. “There are two types of districts: majority districts where African Americans clearly control the outcome, and other districts where they aren’t the majority but they have influence,” he said. Alabama’s 2012 maps “cram African Americans into a handful of districts, so you’re losing that additional ability to influence elections.”

The Republicans defended their methodology and said they had no choice but to move voters around. Their pleadings explain that certain black districts had, in their previous iteration, been deliberately “underpopulated” in an attempt to “spread black voters into neighboring majority-white districts so they could vote in support of white Democratic candidates.” The co-chairs of the legislature’s redistricting committee, State Senator Gerald Dial and State Representative Jim McClendon, both Republicans, declined to comment.

GOP State Representative Dan Williams's north-central Fifth District lost about 5,000 constituents and “was shrunk quite a bit” in the redistricting, he said. The population of whites decreased by 5 percent; the population of blacks increased by 2.5 percent. He believes the Republicans “did the best they could” with a difficult process. “I don’t think there’s any effort made to harm minorities ... any efforts made to disenfranchise anybody,” Williams said. In his view, the lawsuit is sour grapes: “Until the pendulum swings back, the Democratic Party in Alabama is really on lean times.”

But his former colleague, Democrat Greg Burdine, who recently lost his seat in House District One, blames the redistricting in part for his defeat. (During oral argument, the justices asked for evidence that precincts had been split by race.) Burdine’s district used to encompass the northwest city of Florence as well as a few towns and rural sections of Lauderdale and Colbert counties. It now includes only a fraction of Florence and a sliced-up area of the Shoals region, spread over the Tennessee River. “What they did was move minorities into the districts where the Democrats had been there 20 or more years,” he said “They moved those over because they knew they were going to win anyway. They kind of nullified their vote.”

'You realize, I assume, that you’re — you’re making the argument that the opponents of black plaintiffs used to make here.'

Antonin Scalia

Justice of the Supreme Court

“Our Republican super-majority was not looking out for the minorities in those four years that I was [in the legislature],” Burdine added. “The Bills they passed regarding immigrationabortion, health care, voter ID. You just have to look at the voting record and see whether the laws passed have helped [minorities].”

Alabama is still “one of the most polarized electorates in the nation,” said Richard Cohen, president of the Southern Poverty Law Center. By packing high concentrations of black voters into majority-minority districts, he said, the state has created “bleached white districts and super-majority black districts where candidates for public office have little incentive to reach across the racial divide to appeal to voters of a different race. The [Supreme Court] case is important because we need, as a state, to reverse the pattern of polarized voting, not to exacerbate it.”

The federal government filed an amicus, or “friend of the court,” brief in support of neither party. Without condemning Alabama’s plan outright — after all, the plan had been granted preclearance — the brief observes that the redistricting did move 120,000 blacks into majority-black house districts and 106,000 into majority-black senate districts. It has asked the Supreme Court to remand the case for district-by-district scrutiny in accordance with the Voting Rights Act.

Given the Shelby decision, it's unclear what a remand would mean. Alabama is no longer obligated to seek federal preclearance for any changes to its voting procedures, whether in redistricting or for a voter ID requirement.

Later this term, the Supreme Court will hear another redistricting case — out of Arizona. “People didn’t necessarily expect the court to take this,” said Li of the Brennan Center. The Alabama and Arizona cases are “a continuation of the voting wars, where people have jockeyed for advantage whatever way possible. What is the degree to which the courts are willing to go to police that?”

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