The white political establishment in Tuskegee, Ala., hit on a simple way in the late 1950s to hold on to power despite the city’s growing black population. The state legislature simply redrew the city’s boundary lines into what the Supreme Court later described as “a strangely irregular 28-sided figure.” The new boundaries fenced out all but a few of the 40 0 African Americans who had been living within Tuskegee’s city limits and no white voters.
The Supreme Court in 1960 had no difficulty in spotting an apparent violation of the political rights of the city’s black population. In a unanimous decision, the court ruled in Gomillon v. Lightfoot that segregating the city’s residents by race violated either the Fifteenth Amendment’s protection of voting rights or (according to one justice) the Fourteenth Amendment’s Equal Protection Clause.
Drawing legislative districts is more complicated than drawing city limits, and the process is all the more complicated thanks to a series of Supreme Court decisions and congressional enactments beginning in the 1960s. But Alabama’s white political establishment, functioning through the state’s Republican Party, has nevertheless found a way to neuter the political strength of black Alabamians, who comprise about one-fourth of the state’s population.
With Republicans controlling both houses of the state legislature, GOP lawmakers drew up new district lines after the 2010 census that packed African Americans into districts that already had black majorities. The line-drawing helped ensure that African Americans hold about one-fourth of the seats in both chambers, but it also limited any ability of black voters to form effective coalitions with white Democratic voters in other districts.
Black legislators and the biracial Democratic Conference challenged the redistricting plan in federal court as a violation of political rights protected either by the Constitution or the federal Voting Rights Act. A divided three-judge court upheld the plan. And in Supreme Court arguments last week [Nov. 12], conservative justices led by Chief Justice John G. Roberts Jr. appeared ready to reward Alabama Republicans with a decision upholding the racial line-drawing as nothing more than partisan redistricting politics as usual.
Alabama’s Republican solicitor general, Andrew Brasher, told the justices that the plan was aimed at protecting African American voters’ ability to elect candidates of their choice while complying with the Supreme Court’s “one person, one vote” rule for equal-population districts. Liberal justices in particular, Elena Kagan appeared sympathetic to the plaintiffs’ arguments that the state had adopted an unnecessarily strict standard for equal population so as to reduce rather than protect African Americans’ influence at the polls.
The seemingly simply “one person, one vote” rule became much more complicated with a series of Supreme Court decisions starting in the 1990s that limit the use of race in drawing district lines. Under the rulings, race cannot be the “predominant” factor in drawing district lines in comparison to race-neutral considerations, such as compactness. At the same time, redistricting must comply with Voting Rights Act requirements to prevent any “retrogression” in minority voters’ ability to elect candidates of their choice.
Roberts saw the state as facing conflicting demands to add enough black voters to underpopulated districts to preserve their political strength but not so many as to “pack” those districts and limit their influence in others. “They have to hit this sweet spot between those two extremes without taking race predominantly into consideration?” Roberts said in a rhetorical question to the black legislators’ lawyer, New York University law professor Richard Pildes.
Brasher gladly accepted Roberts’s description of the state’s delicate task and defended its solution under sharp questioning from liberals Kagan and Ruth Bader Ginsburg. Brasher explained that the state had adopted a maximum range of 2 percent deviation between districts’ population. In addition, the redistricting plan avoided any reduction in the black percentages in majority-black districts so as to avoid so-called “retrogression” of minority rights.
Kagan bluntly described the argument as “a mistaken understanding of what retrogression entails.” Ginsburg echoed the point. “If that’s a misunderstanding of what [the Voting Rights Act] requires,” she said, “then the whole thing is infected by that mistake.”
Ironically, the default argument for upholding the redistricting plan may be to defend the whole thing as a partisan exercise by Republican legislators to protect the party’s interest at the expense of opposition Democrats. The Supreme Court has ruled, in theory, that political gerrymandering can go too far, but it has never found one that went too far. And two justices, Antonin Scalia and Clarence Thomas, would bar judicial review of partisan line-drawing altogether.
The justices seemed both divided and uncertain after 70 minutes of argument in the case, Alabama Legislative Black Conference v. Alabama. In a nuanced presentation, Solicitor General Donald Verrilli presented the Obama administration’s position that the case should be sent back for further proceedings to examine the role that race played in regard to individual districts.
The legal complexities had the effect, however, of obscuring the underlying political realities. Republicans in Alabama and elsewhere in the South are quite happy to segregate voters by race these days. Black voters packed into majority-minority districts elect enough black Democrats to satisfy the Voting Rights Act, but not enough to have political power, and white Democrats are a vanishing species in office. The tactics are more subtle than those of the bad old days, but hardly faithful to the constitutional principle of equal political rights for all.