Alabama redistricting challenge stays alive in SCOTUS; Scalia sees majority as 'standby counsel'
The U.S. Supreme Court is requiring a new look at an Alabama redistricting plan challenged for keeping high concentrations of black voters in districts they already controlled and lessening their voting impact elsewhere.
In a 5-4 decision (PDF), the U.S. Supreme Court said the federal district court asked the wrong question—and possibly got the wrong answer–when it rejected claims that the line drawing amounted to improper racial gerrymandering.
Alabama lawmakers had redrawn district lines with the goal of avoiding “retrogression” in minorities’ ability to elect their candidates of choice, according to the majority opinion by Justice Stephen G. Breyer. The lawmakers believed they had to avoid retrogression by preventing a decline in a district’s minority voters. As a result, minority voters were added to districts where minorities already held a majority in an effort to preserve the percentage status quo.
The district court had held that race was not the predominant motivating factor in redrawing district lines, and, even if it was, the use of race was narrowly tailored to serve a compelling state interest: the goal of satisfying preclearance provisions of the Voting Rights Act and avoiding “retrogression” in minorities’ ability to elect their candidates of choice.
Both district court findings missed the mark, Breyer said.
The district court was wrong about predominance because it weighed legislative efforts to create districts of approximately equal population against lawmaker’s use of race, Breyer said. Creating districts of nearly equal population “is a background rule against which redistricting takes place,” rather than a factor to be considered when determining whether race predominates in line drawing, Breyer wrote.
Breyer also said the preclearance provision then in effect did not require states with a history of discrimination to maintain a certain numerical percentage of minorities in voting districts. Rather, it barred states such as Alabama from making changes that have the effect of diminishing minorities’ ability to elect candidates of their choice.
The district court and lawmakers had asked this question, Breyer said, with regard to narrow tailoring: “How can we maintain present minority percentages in majority-minority districts?”’
But that was the wrong question, Breyer said. Instead, the question should have been: “To what extent must we preserve existing minority percentages in order to maintain the minority’s present ability to elect the candidate of its choice?”
“Asking the wrong question,” Breyer said, “may well have led to the wrong answer.”
Breyer’s majority opinion was joined by Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.
Justice Antonin Scalia wrote a dissent joined by Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Samuel A. Alito Jr. Thomas also wrote a separate dissent.
Scalia’s dissent began this way: “Today, the court issues 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. If the court’s destination seems fantastical, just wait until you see the journey.”
Scalia went on to argue that the Supreme Court majority had failed to hold the appellants to “the misguided legal theory they presented to the District Court” and to an express waiver of claims on appeal. “Because I do not believe that Article III empowers this court to act as standby counsel for sympathetic litigants, I dissent,” Scalia wrote.
The case is Alabama Legislative Black Caucus v. Alabama.
Related articles:
ABAJournal.com: “SCOTUS mulls redistricting plan that packs blacks into districts, diluting voting strength elsewhere”
ABAJournal.com: “SCOTUS to consider redistricting plan that packed minorities into districts they already controlled”
Updated on March 26 to correct wrong words in the seventh paragraph.
