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Alabama 'Racial Gerrymander' Case Sent Back to District Court

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By Mark Wilson, Esq. on March 25, 2015 11:56 AM

In 2012, the Alabama legislature redrew the state's legislative districts. In doing so, it attempted to keep the districts roughly equal in population and, in order to remain compliant with the Voting Rights Act, keep about the same black population percentage in existing majority-minority districts.

These goals were sometimes at odds with each other, and in the end, Alabama added more black voters to existing majority-minority districts in order to prevent the percentage of minority voters in those districts from declining. The Alabama Black Legislative Caucus and Alabama Democratic Conference called this an impermissible "racial gerrymander."

A Fixed Percentage

The Supreme Court decided (5-4, of course) that a federal district court in Alabama got several parts of its analysis wrong, requiring the case to be sent back and relitigated.

Even though the Alabama legislature tried to keep the percentage of minority voters in majority-minority districts roughly the same as before, the Voting Rights Act doesn't make rigid percentages the lodestar of voting equality. The majority pointed out that keeping "predetermined or fixed demographic percentages" isn't actually the goal. The goal is to keep sufficient minority voters in a district to allow those voters "to elect their preferred candidates of choice." The implication, of course, is that black voters were "packed" into districts in order to dilute their statewide voting power.

With that in mind, the key disagreement between the majority and the dissent wasn't whether racial gerrymandering was bad (it is) or illegal (it is) but whether the petitioners made the right arguments.

Justice Breyer, writing for the majority, said the district court considered racial motivations only as to drawing legislative districts as a whole throughout the state. But that's not the test: "It applies district-by-district. It does not apply to a State considered as an undifferentiated 'whole.'"

Using evidence from the whole state would tend to dilute the petitioners' argument that race was a motivating factor in drawing the boundaries, because not all the boundaries would be redrawn for racial reasons. That's true, said Breyer, but just because some districts weren't drawn for racial reasons doesn't mean that others weren't. At the same time, the Court said plaintiffs weren't precluded from using statewide evidence to support their claims as to individual districts.

Dissent: Rescuing the Petitioners

The Usual Suspects dissented, led by Justice Scalia, who began with a bombastic opening (as is his style), claiming that the majority's decision "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."

While he agreed that racial gerrymandering was constitutionally impermissible, he chastised the majority for allowing the plaintiffs "a second bite at the apple." Essentially, Scalia said, the petitioners made a bad argument: They, not the district court, made the state-wide claims, which ultimately failed there because the test goes district-by-district. Rather than throw that argument out, Scalia said the majority instead "cherry-picked from district-court filings ... the vague outline of what could be district-specific racial-gerrymandering claims."

Justice Thomas dissented separately to reiterate that the court's voting rights jurisprudence is "misguided and damaging" and that the attempts over the years to create more voting equality have actually led to the current problem, not helped it.

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