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In Ala., Is Partisan Gerrymandering With a Hint of Race OK?

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By Mark Wilson, Esq. on November 12, 2014 12:42 PM

When does a permissible partisan gerrymander become an impermissible racial gerrymander? The U.S. Supreme Court dealt with that question in oral arguments today in Alabama Legislative Black Caucus v. Alabama. According to the petitioners, in 2012, the Alabama legislature redrew state legislative districts in an attempt to dilute statewide black voting power by "packing" black voters into existing majority-black districts.

Alabama contended that the 2012 gerrymandering didn't alter the racial composition of the districts; that is, they already contained a majority-black electorate. And whatever changes they did make were for partisan, not racial, reasons.

Richard Pildes, for Petitioners

Here's the problem: Prior to 2012, several majority-black districts were under-populated, ostensibly in an attempt by Alabama Democrats, who controlled the legislature until then, to increase statewide black voting power. Chief Justice Roberts' very first question out of the gate was for Richard Pildes, the petitioners' attorney, to explain this apparent dissonance: It was OK for Democrats to under-populate to get more votes in other districts, but it wasn't OK for Republicans to over-populate to do the same thing?

This apparent double standard took up most of Pildes' time, along with the question -- asked by Justice Kennedy -- of whether race can be used to achieve a partisan outcome. Pildes responded that "race can't be used excessively and unjustifiably," but the conservatives on the Court felt that race was inevitably being used as a proxy for political affiliation, and vice versa.

Andrew Brasher, for Respondents

Andrew Brasher, for Alabama, claimed that Alabama's plan was an innocent "status quo" plan; that is, what the petitioners called "packing" was really an attempt to preserve majority-black districts. Indeed, as Justice Kagan pointed out, the state's policy was specifically to redraw districts so as to maintain the status quo of black voters in certain districts. But the state apparently misunderstood the meaning of "retrogression," believing that preventing retrogression (a decline in the percentage of black voters in a district), as required by an amendment to the Voting Rights Act, meant keeping the same number of black voters in a district.

Brasher also claimed that the state's plan actually helps black voters and that it was consistent with the Voting Rights Act. The Voting Rights Act prevents redistricting from diminishing the ability to reasonably elect politicians of one's choice. Having less than a 55 percent black majority in a district, he said, actually gives blacks less of an opportunity to elect the politicians of their choice -- meaning that packing more black voters into a district is fairer.

Because most black voters in Alabama tend to vote Democratic, race comes into play at some point in the calculus. Unlike Shaw v. Reno, the record in this case seemed fairly clear that race was explicitly taken into account. But does race as a factor trump other factors simply because it's race, or does the existence of other factors, like political party affiliation, ameliorate the problem of racial classification?

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