Issues
- Does Alabama’s legislative redistricting plan violate the Equal Protection Clause because its drafters attempted to maintain black voting population percentages in order to comply with Section 5 of the Voting Rights Act?
- Does the Alabama Democratic Conference have standing to challenge the constitutionality of Alabama’s redistricting plan?
The Supreme Court’s decision in this case will likely clarify the extent that state redistricting plans may take race into consideration when trying to comply with the Voting Rights Act or the Constitution. The Alabama Legislative Black Caucus and the Alabama Democratic Conference allege that Alabama’s 2012 redistricting plan impermissibly focused on race in drawing new district lines. Alabama responds that the 2012 redistricting plan’s primary motivations were compliance with the Constitution’s requirement of “one person, one vote” and prevention of retrogression under the Voting Rights Act. The resolution of this case will likely address the role courts play in policing redistricting plans enacted by state legislatures.
Questions as Framed for the Court by the Parties
No. 13-895
Whether Alabama’s legislative redistricting plans unconstitutionally classify black voters by race by intentionally packing them in districts designed to maintain supermajority percentages produced when 2010 census data are applied to the 2001 majority-black districts.
No. 13-1138
This appeal in a legislative redistricting case presents issues of law in regard to how a State may rely on race in setting district boundaries. It is undisputed that the State had, among its chief goals, the idea that when possible it would redraw each majority--black district to have the same percentage of black population as the district would have had using 2010 census data as applied to the former district lines. This goal, particularly when combined with the new goal of significantly reducing population deviation among districts, led the State to stark racial intentionality in district-drawing, packing more super-majorities of black voters into already-majority-black districts, without regard to whether such efforts were actually necessary in each district to allow black voters to elect candidates of their choice. A divided three-judge District Court rejected the challenge to this map. This appeal presents issues summarized as follows:
a. Whether, as the dissenting judge concluded, this effort amounted to an unconstitutional racial quota and racial gerrymandering that is subject to strict scrutiny and that was not justified by the putative interest of complying with the non-retrogression aspect of Section 5 of the Voting Rights Act?
b. Whether these plaintiffs have standing to bring such a constitutional claim?
Facts
After the 2010 census revealed malapportionment in most electoral districts in Alabama, the Republican-controlled Alabama legislature declared that compliance with the Constitution’s mandate of “one person, one vote” would be its highest priority in creating new district lines in 2012. Accordingly, in its 2012 redistricting plan, Alabama required that every district's population be within a 2% deviation of the constitutional requirements of equal apportionment. Moreover, to avoid retrogression under the Voting Rights Act, Alabama made it a priority to at least maintain the number of majority-minority districts and the percentage of minority voters in new districts at previous levels under the 2001 plan. In an effort to accomplish these goals, the 2012 plan reallocated large numbers of minority voters to majority-black districts.
As a result, the final version of the 2012 plan roughly maintained the same percentages of black voters in majority-minority districts as the 2001 redistricting plan did. All black legislators in the Alabama House of Representatives and Senate opposed the 2012 redistricting plan but both houses approved the plan largely along party lines. Subsequently, the Alabama Legislative Black Caucus (“ALBC”) and the Alabama Democratic Conference (“ADC”) both challenged Alabama’s 2012 redistricting plan in the District Court for the Middle District of Alabama.
Both the ALBC and the ADC challenged the “apportionment of . . . [a] statewide legislative body,” and thus were assigned to a three-judge court under 28 U.S.C. § 2284. The court subsequently consolidated both actions into one lawsuit because the actions involved similar issues of law and fact. Both the ALBC and the ADC presented two arguments to support their claims: first, they argued that Alabama, through the 2012 redistricting plan, violated of the Voting Rights Act by diluting the black vote; second, they argued that Alabama’s new redistricting plan amounted to a violation of the U.S. Constitution’s Fourteenth and Fifteenth Amendments.
Ruling 2-1 in favor of Alabama, the three-judge court dismissed both claims, holding that Alabama’s 2012 redistricting plan did not violate either the Voting Rights Act or the U.S. Constitution. After the three-judge court’s unfavorable judgment, the ALBC and ADC directly appealed to the Supreme Court of the United States.
Analysis
This case provides the Supreme Court with the opportunity to establish what level of Fourteenth Amendment Equal Protection scrutiny applies to state redistricting plans that aim to comply with the standards of the Voting Rights Act, and what states may or may not do in their efforts to comply with the Voting Rights Act. The Supreme Court has established various tests that apply to Equal Protection cases, including “strict scrutiny” (the most stringent test) and “rational basis” (the least stringent test). Alabama maintains that strict scrutiny does not apply here because claims of gerrymandering via race require a district-by-district analysis, and that their motivation behind the 2012 redistricting policy was based on a desire to comply with Section 5 of the Voting Rights Act (“Section 5”). The ADC and ALBC counter that strict scrutiny applies in this case because, in their view, racial concerns predominately motivated Alabama.
The Supreme Court may also decide whether the ADC has standing to bring claims against Alabama’s 2012 redistricting plan. The ADC argues that it has standing because the redistricting impaired the organization’s ability to function and the ADC has at least one member residing in a majority-black district that the redistricting affected. Alabama counters that the ADC lacks standing because the ADC has not identified a particularized injury, proved that the redistricting caused any of the ADC members’ alleged injuries, or shown that the harm is redressible.
DOES ALABAMA’S REDISTRICTING PLAN VIOLATE THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT?
WHAT LEVEL OF SCRUTINY SHOULD APPLY?
The ADC and ALBC argue that strict scrutiny review applies because racial considerations predominately motivated Alabama’s redistricting policy. The ADC contends that the redistricting plan expressly categorized voters by race, warranting strict scrutiny review. Specifically, the ADC reasons that the plan’s racial basis is facially apparent because the plan disregarded considerations informative of the ability of black voters to elect their candidates of choice and resulted in black-population percentages (“BPPs”) above 70% in some districts. The ADC also argues that Alabama’s unwillingness to accept any alternative policy to maintaining fixed the BBPs establishes the plan’s drafters’ racial motivations. Similarly, the ALBC argues that strict scrutiny applies because by testifying that their goal was to reproduce the 2001 population percentages per district, the drafters established that race was the predominant consideration behind the plan.
Alabama counters that strict scrutiny is inapplicable because the ADC and ALBC are not challenging the design of a specific district. Rather, Alabama contends that since the challenge is to a statewide plan, the strict scrutiny narrow-tailoring requirement should not apply because the Court cannot isolate the fixed BPP policy’s effect from other factors that influenced the plan. Furthermore, Alabama suggests that the policy was neither the predominant motivator behind the redistricting as a whole nor the design of any particular district. Alabama argues that nonracial factors, including historical population concentrations throughout Alabama, can explain the consistency of BBPs. Moreover, Alabama asserts that it aimed to keep within a 2% standard deviation of the population between districts instead of the ADC’s and ALBC’s proposed 10% deviation, which may explain the differences in BBPs between Alabama's and the ADC's and ALBC's proposed plans. Alabama also argues that the motivation behind the larger deviation was political—Alabama believes that the ADC and ALBC sought to put as many white Democrats in office as possible.
CAN THE REDISTRICTING PLAN SURVIVE RATIONAL-BASIS REVIEW OR STRICT SCRUTINY?
The ALBC and ADC contend that the redistricting plan is “not narrowly tailored to achieve a compelling interest” and therefore fails strict scrutiny. The ALBC asserts that although compliance with Section 5 is important for Alabama, “[S]ection 5 neither required nor sanctioned the unusual race-based scheme used to create the plan.” The ALBC further argues that Section 5 did not force Alabama to “maintain the level of the minority population percentage in every majority-minority district.” First, the ALBC contends that population percentages could, in some circumstances, be high enough to decrease without harming minorities’ ability to elect. Second, the ALBC suggests that fixing minority population percentages could ultimately harm minorities because maintaining a minority population percentage in one district could entail decreasing that minority population’s percentage in another. Third, according to the ALBC, the DOJ advises that district population is not the only factor affecting retrogression, and thus, maintaining supermajority minority districts is not dispositive of nonretrogression.
Similarly, the ADC argues that Alabama’s plan fails all standards of review, strict or otherwise, because Alabama’s redistricting plan was predominately motivated by race. Like the ALBC, the ADC also argues that Alabama misinterpreted Section 5 of the Voting Rights Act. To support this contention, the ADC argues that Section 5 requires legislatures to take into account multiple variables outside of percentages, and to functionally analyze the probable effect that a redistricting plan will have on each specific district. Instead of hard numbers, the ADC suggests, Section 5 allows a decreases in BPPs “if doing so will not have an actual retrogressive effect.”
Alabama counters that the 2012 redistricting plan survives strict scrutiny, which means that it also passes a rational-basis review as well. Alabama notes that to pass strict scrutiny, it must prove that “the state’s use of race was reasonably necessary to avoid retrogression” by presenting “a strong basis in evidence to support its consideration of race.” Alabama contends that it presented a strong basis in evidence that the redistricting plan was not retrogressive because DOJ guidelines, Section 5 precedent, and legislative history all indicate that a minority supermajority within a district is dispositive evidence of minority voters’ ability to elect. Furthermore, Alabama asserts that it based the redistricting plan on districts that black legislators had drawn in the past as well as direct advice from black legislators, such as maintaining 60–65% black population percentages in majority-black districts. Alabama contends that these factors disprove a discriminatory motivation. Finally, Alabama argues that the ADC’s proposal to mandate a functional analysis of all majority-black districts is practically and constitutionally problematic. Alabama maintains that such an approach would create “federalism costs” because it would not allow states sufficient discretion to comply with Section 5 and would require stereotypical and subjective analysis to determine voter preferences and tendencies.
DOES THE ALABAMA DEMOCRATIC CONFERENCE HAVE STANDING?
The ADC argues that it identified two injuries sufficient to confer standing. First, the ADC claims “representational standing” because at least one of its members, Stacey Stallworth, resides in a district affected by plan, and the Court can also infer that the ADC has at least one member in many black-majority districts. Second, the ADC claims “organizational standing” because the redistricting plan impairs the ability of blacks to run for and hold office, which is one of the ADC’s objectives, and also because the redistricting plan forces the ADC to expend resources across dispersed districts.
Alabama counters that the ADC lacks standing because it has not alleged a sufficiently particularized harm traceable to the redistricting plan and because the Court cannot redress any of the ADC’s alleged harms. Alabama argues that the ADC’s challenge to Alabama’s statewide districting plan—rather than a specific district—is too generalized to bestow organizational standing. Furthermore, Alabama claims that the ADC lacks representational standing because the BBP of Stacey Stallworth’s district dropped under the redistricting plan and the ADC did not establish that it had members in each black-majority district. Alabama maintains that the ADC has not proved that the redistricting policy caused the alleged harms, and that the Court cannot redress the ADC’s alleged injuries because vacating the redistricting plan—the ADC’s proposed remedy—would not increase racial integration.
Discussion
This case presents the Supreme Court with the opportunity to consider to what extent legislatures can take race into consideration when creating new redistricting plans and to what extent courts can intervene if those plans venture into potentially unconstitutional territory. The Alabama Legislative Black Caucus (“ALBC”) and the Alabama Democratic Conference (“ADC”) argue that Alabama’s 2012 redistricting plan’s predominant focus on race, in the form of maintaining minimum racial ratios in minority-majority districts, cannot be justified under the Voting Rights Act or the Constitution. However, Alabama’s position is that its 2012 redistricting plan focused on repopulating previously malapportioned districts in order to meet the standards of the Voting Rights Act.
RACE OR POLITICS?
The United States and several amici argue that Alabama’s 2012 redistricting plan, if upheld, may result in legislatures “packing” minorities (“concentrating” minorities into specific districts) and stifling the political participation of minority communities. Specifically, the Brennan Center for Justice contends that redistricting plans such as Alabama’s might compel states to reapportion minority voters into minority-majority districts in circumstances where that might be needless or even detrimental to minorities. Moreover, Alabama’s redistricting plan’s focus on race, the Brennan Center argues, may create “non-performing” districts that appear to “allow minorities to elect their community’s candidates of choice” but, in actuality, fail to do so “because election results are influenced by many things other than racial demographics,” such as voter registration and turn-out.
Alabama counters these race-based arguments by introducing alternative explanations based on political factors on the ground. Although Alabama notes that there is considerable overlap between partisanship and race in Alabama, it argues that the Court’s precedent nevertheless establishes that political gerrymandering is constitutional, and that Alabama’s legislature could have drawn districts lines favoring its electoral prospects. In other words, Alabama explains, the Constitution permits a Republican-controlled legislature’s decision to remove Democratic voters to repopulate majority-black districts, instead of Republican voters. Alabama also argues that incumbent legislators made requests to the framers of the redistricting plan to maintain or add minority voters to their districts in an effort to protect their electoral chances. Alabama explains that this preference expressed by legislators is more likely related to socio-economic and political similarities than race.
JUDICIAL INTERVENTION OR LEGISLATIVE DISCRETION?
Amici litigating a similar matter in North Caroling (the "North Carolina Litigants") argue that courts must correct states’ misunderstanding of governing legal standards regarding race-based redistricting. They argue that where the legislature has failed to comply or has ignored applicable legal standards, the courts must intervene to protect the constitutional right of voters and guarantee equal protection under the law. Additionally, the United States contends that the district courts must first engage in a fact-intensive, individualized analysis of each district to determine whether race was really a predominant factor in the redistricting plan.
In contrast, Alabama argues that a judicial intervention in redistricting, however small, is an intrusion of inherently “local functions” of the legislature, and therefore, redistricting must be left to the legislature’s discretion. Specifically, Alabama argues that redistricting inherently involves dealing with arbitrary, ad hoc groups of voters with competing interests. Alabama stresses that consequently, judicial review of redistricting plans will become a political—not legal—review. In response to the United States’ argument for individualized analysis for each district, Alabama argues that the cost outweighs the benefit. Alabama asserts that such an analysis would inevitably invite greater risks of injecting race as the predominant variable when attempting to analyze voter behavior.
Conclusion
In this case, the Supreme Court will decide whether Alabama’s 2012 redistricting plan, which focused on maintaining previous percentages of black voters in its newly-drawn districts, violated either the Voting Rights Act or the Constitution. The Court will likely clarify what standard of review will apply to state redistricting plans aimed complying with the Voting Rights Act, and what individual states may or may not do in their efforts to comply with that standard. In its ruling, the Court will likely consider the extent to which states should take race into consideration in their redistricting plans and the role of courts in policing redistricting plans in individual states.
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Additional Resources
- Jess Bravin: Supreme Court Takes Up Appeal on Alabama Redistricting Plan, The Wall Street Journal (June 2, 2014).
- Richard Wolf: Court to weigh use of race in drawing political lines, USA Today (Sept. 1, 2014).
- Reid Wilson: Supreme Court will hear Alabama redistricting case, The Washington Post (June 1, 2014).