Last week, the Supreme Court heard oral arguments in the consolidated appeals of Alabama Legislative Black Caucus v. Alabama and Alabama Democratic Conference v. Alabama. The cases are being watched closely by states, political parties and voting rights advocates because they raise thorny issues of when, and to what degree, race can or cannot be used by state legislatures in drawing district lines.votesign

At issue are Alabama House and Senate district plans that were adopted based on the 2010 Census and in the wake of the 2010
general election that gave Republicans a super-majority in both houses. The plans maintained both the same number of “majority-minority” districts and the same percentages of African Americans within those districts as existed under the previous districting plan.

Under the Voting Rights Act, race-conscious line drawing has long played a proper role in redistricting to guard against the fragmentation or packing of minority populations, and to provide minority voters an opportunity to elect candidates of their choice where they would otherwise be prevented from doing so by racial bloc voting and other electoral factors.  Majority-minority districts are presumptively constitutional unless it can be established that traditional districting considerations were subordinated to race in the drawing of the plan, and even then, the plan must fail to meet strict scrutiny in order to be held unconstitutional.

The plaintiffs in the cases heard by the Court on Wednesday do not challenge the legislators’ decision to retain the existing number of majority-minority districts. Instead, they argue that the Alabama Legislature used race as the predominant factor in setting unconstitutional “racial targets,” which mandated that pre-existing majority-minority districts be maintained with the same African American percentages—regardless of whether such percentages were necessary to give minority voters the opportunity to elect candidates of their choice.  The State claimed this policy was mandated by the non-retrogression standard under Section 5 of the Voting Rights Act, which prohibits covered jurisdictions from enacting new districting plans that make it more difficult for minority voters to elect candidates of their choice.

Coupled with the State’s decision to keep district populations within two percent of each other, which the State argued was set to comply with the constitutional requirement of “one person, one vote,” the State’s decision to retain existing demographics in the districts resulted in shifting large numbers of African Americans into under-populated majority-minority districts under the plans.  According to the plaintiffs, this had the effect of preventing African Americans from forming voting coalitions with white Democrats and other racial minorities outside of the majority-minority districts.

The Court has at least three possible ways to resolve the case: 1) affirm the district court’s decision which denied the plaintiffs any relief; 2) remand the case to district court for further proceedings; or, 3) reverse the district court altogether and determine that Alabama’s redistricting plans constituted a racial gerrymander.  Based on the justices’ questions and comments during the argument, it appears most likely the Court will affirm the district court’s decision or remand the case.

Chief Justice John Roberts and Justice Antonin Scalia appeared sympathetic to Alabama’s contention that it retained the same percentages of African Americans in majority-minority districts to avoid problems under the non-retrogression standard of Section 5 of the Voting Rights Act. Justices Elena Kagan and Ruth Bader Ginsburg, on the other hand, did not view the argument favorably.

Although the State of Alabama never expressly stated that its use of racial targets was a partisan effort to shore up the Republican super-majority’s chances for reelection, several justices, including Justices Scalia and Anthony Kennedy, appeared to hold the view that the legislature’s plans may have been adopted for such partisan, rather than racially discriminatory, reasons.

Justice Stephen Breyer suggested that the Court could remand the case to determine on a district by district basis whether the State’s redistricting plans were, in fact, enacted for the legitimate purpose of complying with Section 5 of the Voting Rights Act.

Justice Samuel Alito questioned whether the Alabama Legislative Black Caucus plaintiffs had made district-specific challenges to the plans in the District Court, which are typical in cases of racial gerrymandering. If the State’s redistricting plans are determined to be constitutionally infirm, the Alabama Legislature will be given the first opportunity to redraw the plans.  In that event, the State will be unable to rely on Section 5 of the Voting Rights Act as justification for any districts drawn in future plans since, under the Court’s Shelby County v. Holder decision, the State is no longer subject to that provision.

The irony here is how the State of Alabama seeks to have it both ways: It justifies its redistricting plan through Section 5 of the Voting Rights Act, which it successfully sought to nullify as an amicus in Shelby County. To accept the State’s argument, as the Lawyers’ Committee argued in our amicus brief, would paradoxically make Section 5 both “dead and alive” in redistricting cases.  The Lawyers’ Committee believes that an appropriate disposition would be for the Supreme Court to remand the case to the district court for reconsideration of the racial gerrymandering issue under the proper legal standards.

For more on these cases, check out our AFJ Audio Analysis

By Julie M. Houk is senior special counsel at the Voting Rights Project of the Lawyers’ Committee for Civil Rights Under Law, an AFJ member organization.