By Roland Franklin and Rob Tyson
A recent United States Supreme Court decision significantly impacts redistricting litigation.
In Alabama Legislative Black Caucus v. Alabama, No. 13-895 (slip op.) (Mar. 25, 2015), the Alabama Legislative Black Caucus (“Caucus”) and the Alabama Democratic Conference (“Conference”) challenged the lawfulness of Alabama’s 2012 redistricting plans. According to the Caucus and the Conference, the newly-drawn district boundaries created “racial gerrymanders” in violation of the Fourteenth Amendment’s Equal Protection Clause, which forbids the use of race as a predominant factor in drawing districts unless the boundaries are narrowly tailored to achieve a compelling state interest. The plaintiffs maintained Alabama’s plans packed more minorities into existing majority-minority districts than was necessary. The plaintiffs insisted the plans were drawn without analyzing whether existing minorities in majority-minority districts could elected a preferred candidate of its choice.
In 2012, the Alabama General Assembly redrew the state’s 105 House districts and 35 Senate districts, many of which were underpopulated but had a high percentage of black voters. In redrawing the districts, the Alabama General Assembly sought to achieve numerous traditional districting objectives, including compactness, not splitting counties, minimizing change, and protecting incumbency. The Caucus and the Conference complained that the General Assembly placed too much emphasis on two of those goals, namely, (1) minimizing a district’s deviation from equal population and (2) seeking to avoid retrogression with respect to a racial minorities’ ability to elect their preferred candidates of choice under Section 5 of the Voting Rights Act (“VRA”). The Caucus and the Conference claimed that the state “went too far” in adding more minority voters to what were already majority-minority districts, creating a racial gerrymander that would end up hurting the very voters that the VRA sought to protect. The district court found in favor of the state, holding that the caucus and the conference failed to prove that race was a predominant motivating factor in creating the districting plans as a whole.
In a 5-4 decision, the Supreme Court vacated the district court’s decision. The Court held that the district court improperly considered evidence of statewide racial effects in determining whether the state used race as a factor when redrawing boundary lines. According to the Court, racial gerrymandering claims can be analyzed district-by-district, not to a state as a whole. A racial gerrymandering claim is a personal claim that “directly threaten[s] a voter who lives in the district attacked,” not a voter “who lives elsewhere in the State.” (Emphasis in original). While a voter can present statewide evidence in order to prove racial gerrymandering in a particular district, “neither the use of statewide evidence nor the effort to show widespread effect can transform a racial gerrymandering claim about a set of individual districts into a separate, general claim that the legislature racially gerrymandered the State ‘as’ an undifferentiated ‘whole.’”
The Court held further that the district court erred by considering Alabama’s goal of obtaining a 1% population deviation as a relevant factor in determining whether race was a predominate factor in redrawing district lines. According to the Court, “an equal protection goal is not one factor among others to be weighed against the use of race to determine whether race ‘predominates.’” Instead, equal population “is part of the redistricting background, taken as a given, when determining whether race, or other factors, predominate in a legislator’s determination as to how equal population objectives will be met.” The equal population objective plays a different—indeed, special—role in a State’s redistricting process.
“It is not about whether a legislature believes that the need for equal population takes ultimate priority. Rather, it is, as we said, whether the legislature ‘placed’ race ‘above traditional districting considerations in determining which persons were placed in appropriately apportioned districts.” In other words, if the legislature must place 1,000 or so additional voters in a particular district in order to achieve an equal population goal, the ‘predominance’ question concerns which voters the legislature decides to choose, and specifically whether the legislature predominantly uses race as opposed to other, ‘traditional’ factors when doing so.”
(Emphasis in original; internal citation omitted). Thus, the equal population requirement is a “background rule against which redistricting takes place[,]” and “not a factor to be treated like other nonracial factors when a court determines whether race predominated over other, ‘traditional’ factors in the drawing of district boundaries.”
Finally, the Court rejected the district court’s holding that Alabama’s gerrymandering satisfied strict scrutiny because it was narrowly tailored to comply with Section 5 of the VRA. Instead, the Court held that “Section 5 does not require maintaining the same population percentages in majority-minority districts as in the prior plan. Rather, § 5 is satisfied if minority voters retain the ability to elect their preferred candidates.” A court’s analysis of the narrow tailoring requirement “insists only that the legislature have a ‘strong basis in evidence’ in support of the (race-based) choice that it has made” rather than a compelling state interest. A state cannot rely “heavily upon a mechanically numerical view as to what counts as forbidden retrogression.” For example,
“Imagine a majority-minority district with a 70% black population. Assume also that voting in that district, like that in the State itself, is racially polarized. And assume 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, while increasing the numerical size of the district, reduced the percentage of the black population from, say, 70% to 65% would have a significant impact on the black voters’ ability to elect their preferred candidate. And, for that reason, it would be difficult to explain just why a plan that uses racial criteria predominantly to maintain the black population at 70% id ‘narrowly tailored’ to achieve a ‘compelling state interest,’ namely the interest in preventing § 5 retrogression.”
The Court’s decision changes the redistricting landscape considerably because a state’s use of the VRA as a justification for packing more minorities into majority minority districts will be analyzed more closely. States will have to demonstrate its plans have non-racial motives rather than just being able to say the districts were drawn to meet the requirements of the VRA. This could lead to plans with minorities spread across more districts. The impact of the decision has been felt already. The Court remanded the Virginia congressional redistricting case back to the district court “for further consideration in light of Alabama Legislative Black Caucus.”
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