March 26, 2015

The case could affect redistricting in other racially polarized states.

he Supreme Court stopped just short of ruling Alabama’s redistricting plan unconstitutional on Wednesday, but it sent a clear message to lawmakers across the country that the Voting Rights Act can’t be used to justify maps that predominately group voters together based on their race.

In a 5-4 ruling, the high court sided with black lawmakers and Democrats in Alabama in throwing out a lower court’s decision that upheld the GOP-drawn state legislative map. This was the court’s second high-stakes decision in two years dealing with the Voting Rights Act and will likely have an affect on redistricting legal battles in states like Virginia and North Carolina.

The case was brought by African-American lawmakers in Alabama who argued that the Republican-controlled Legislature packed thousands of black voters into existing majority-black state legislative districts to secure a GOP-advantage in the other districts. Republican lawmakers have maintained they were complying with the Voting Rights Act in moving the black voters to existing majority-minority districts.

But the ruling simply called the lower court’s decision “legally erroneous” and sent the case back to it without ruling whether Alabama’s redistricting plan is unconstitutional.

“The appeals focus upon the appellants’ claims that new district boundaries create ‘racial gerrymanders’ in violation of the Fourteenth Amendment’s Equal Protection Clause,” Justice Stephen Breyer wrote in the majority opinion. “We find that the District Court applied incorrect legal standards in evaluating the claims.”

Justice Anthony Kennedy was the swing vote on the case and joined the court’s four liberal justices to make up the majority.

But while Breyer only remanded the case backed to the lower court for further consideration, he strongly suggested that some of the districts should be deemed unconstitutional. “That Alabama expressly adopted and applied a policy of prioritizing mechanical racial targets above all other districting criteria (save one-person, one-vote) provides evidence that race motivated the drawing of particular lines in multiple districts in the State,” he wrote.

Nathaniel Persily, a Stanford University professor and redistricting expert who has helped a number of states draw their maps, said the biggest takeaway from the ruling is how state lawmakers will now defend themselves in other states where they have used a similar defense in redistricting battles.

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“If a state is attempting to create super-packed majority-minority districts, it cannot use the Voting Rights Act as an excuse to do so,” Persily said.

For partisan advantage, Republicans have historically tried to “pack” minorities into districts, while Democrats have attempted to “crack” majority-minority districts in the redistricting process to spread minorities into more districts to boost Democratic candidates, even at the expense of providing safer seats for minority candidates.

Republican-led states in recent years have interpreted the Voting Rights Act to mean that they can’t reduce the percentage of black inhabitants of a majority-minority district even by the slightest amount — and in states where voters are polarized politically along racial lines, that has allowed them to draw districts that are more Republican.

But the high court ruled that the lower court erred in applying that standard. Instead, Breyer said in his majority opinion, the state needs to balance avoiding the consideration of race except “to maintain the minority’s present ability to elect the candidate of its choice.”

“Imagine a majority-minority district with a 70-percent black population,” Breyer wrote. “Assume also that voting in that district, like that in the state itself, is racially polarized. And assumed that the district has long elected to office black voters’ preferred candidate. Other things being equal, it would seem highly unlikely that a redistricting plan that … reduced the percentage of the black population from, say, 70 percent to 65 percent would have a significant impact on the black voters’ ability to elect their preferred candidate.”

States lawmakers — of both parties — will now have to employ a much more nuanced way of using race in the redistricting process, said Justin Levitt, another redistricting expert at Loyola Law School in Los Angeles who also worked as the Democratic National Committee’s National Voter Protection counsel in 2008.

“This isn’t a case about Alabama,” Levitt said. “It’s about how officials consider race. Other states have very similar philosophies as Alabama. The court today said, ‘Guess what? They’re wrong.’”

The court’s ruling is a victory for Democrats in Virginia, where a panel of federal judges ruled recently that the Republican-led Legislature’s decision to pack African-American voters into the 3rd Congressional District, which is represented by Democratic Rep. Bobby Scott, was motivated purely by race — a violation of the 14th Amendment.

Virginia’s Republican members of Congress appealed the case to the Supreme Court. The case has given Democrats a chance to push for new lines that could make at least two districts — the 2nd and 4th, currently represented by GOP Reps. Scott Rigell and Randy Forbes, respectively — more competitive once some of the black population from Scott’s district is moved.

“Similar to Alabama, here in Virginia we have suffered from racial gerrymandering by the GOP designed to dilute the voting power of minority voters,” said Morgan Finkelstein, spokeswoman for the Virginia Democratic Party. “Today’s ruling shows that the legal system — and the country — is paying more and more attention to this troubling issue. We need compact, contiguous districts and remain hopeful that Virginia Republicans will stop stalling and work with us towards achieving equal representation for all Virginians.”

A federal court has given Virginia’s General Assembly until Sept. 1 to redraw their congressional map.

As the Alabama case moves back to the lower court, Republicans in the Yellowhammer State have said they will continue to defend the existing districts and that there is no need to redraw districts or hold new elections.

“While I am disappointed that the Supreme Court vacated the district court’s decision, the Court did not invalidate the redistricting plan as a whole or any specific district,” said GOP state Attorney General Luther Strange in a statement. “My office will continue defending the State’s legislative districts.”

Writing the dissenting opinion on Wednesday, Justice Antonin Scalia called the majority opinion “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.”

Then he tore into the substance of the decision, writing that the high court acted “as standby counsel for sympathetic litigants” who failed to present a compelling case. “Frankly, I do not know what to make of appellants’ arguments,” Scalia wrote. “They are pleaded with such opacity that, squinting hard enough, one can find them to contain just about anything. This, the Court believes, justifies demanding that the District Court go back and squint harder, so that it may divine some new means of construing the filings. This disposition is based, it seems, on the implicit premise that plaintiffs only plead legally correct theories. That is a silly premise.”

Justice Clarence Thomas, the only black justice on the court, also wrote a dissenting opinion.

Jason Torchinsky, a Republican lawyer who is involved in a redistricting case out of Arizona, said he hopes that lawmakers redraw the map instead of continuing to defend the districts to avoid a “spectacle.”

“The Supreme Court today remanded the Alabama case for further consideration into evidence at trial and suggested that the trial court hear additional evidence,” Torchinsky said. “As Justice Scalia noted, the court is essentially giving the plaintiffs a ‘mulligan’ to prove their case on a second try.”

The case is Alabama Legislative Black Caucus v. Alabama et al.