Alabama’s legislative maps, which minimized black voters’ influence by packing these voters into a small number of districts, will get another day in court thanks to a 5–4 decision — Justice Anthony Kennedy crossed over to vote with the Court’s liberal bloc — that the Supreme Court handed down on Wednesday. Though the Court’s decision in Alabama Legislative Black Caucus v. Alabama does not necessarily ensure that the state’s maps will be struck down, it rejects a lower court’s reasoning which upheld the unusual, racially focused method the state used in drawing many of its districts.
As Justice Stephen Breyer explains in the Court’s opinion, Alabama’s maps were the product of two considerations. First, the state “sought to minimize the extent to which a district might deviate from the theoretical ideal of precisely equal population” with respect to the state’s other districts (a goal Breyer characterizes as desirable). Additionally, the state purported to believe that it was required, under the Voting Rights Act, to “maintain roughly the same black population percentage in existing majority-minority districts.” Thus, for example, after determining that one overwhelmingly black district needed an additional 16,000 voters to comply with the goal of equal population, “Alabama’s plan added 15,785 new individuals, and only 36 of those newly added individuals were white.”
The practical effect of this tactic, whether it was the legislature’s intended result or not, is that it diminished African American voters’ influence in the state legislature. Because a black candidate need only win a plurality of the vote in their district in order to win election, many black voters in districts that were over 70 percent black essentially wasted their vote on a candidate who was certain to win anyway. Had the state’s maps been drawn differently, so that these districts were only 51 percent black, the African American voters who spilled over into other districts could have influenced the outcomes in those districts as well.
The maps also impacted the partisan composition of the state legislature, because voters in Alabama are also racially polarized. In 2008, for example, 98 percent of African Americans voted for Democratic future President Barack Obama and 88 percent of whites voted for Republican candidate John McCain. This meant that, when the state drew maps that reduced the power of black voters, it also effectively boosted the power of Republican voters.
Justice Breyer found several faults with the lower court’s decision upholding these maps. Among other things, the Court rejects the misreading of the Voting Rights Act which claims that majority-minority districts can never be redrawn to have fewer minorities than they would have had under a previous map. The Voting Rights Act, Breyer explains, “does not require a covered jurisdiction to maintain a particular numerical minority percentage. It requires the jurisdiction to maintain a minority’s ability to elect a preferred candidate of choice.” To illustrate this distinction, he offers an 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.
The Court’s opinion also takes issue with the lower court’s decision to evaluate whether “race improperly motivated the drawing of boundary lines of the State considered as a whole,” when the proper inquiry is to consider whether “race was improperly used in the drawing of the boundaries of one or more specific electoral districts.” As a practical matter, this will permit the lower court to strike down individual districts even if it concludes that impermissible racial factors did not drive the map-drawing process as a whole.
So Wednesday’s decision is a victory for black voters in Alabama. It is unclear, however, whether it will prove to be much of a victory. Alabama’s current maps were drawn in 2012. It is now 2015. Justice Breyer’s decision, moreover, does not strike these maps down. It concludes that “we must vacate the lower court’s judgment and remand the cases to allow appellants to reargue their racial gerrymandering claims.” By the time that happens, months or even years could pass, especially if the case takes another trip up to the Supreme Court. More elections are likely to occur before the courts reach a final decision on whether Alabama’s maps are acceptable.
This case, in other words, highlights a theme I discuss in my new book, Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted. In the Jim Crow South, state officials seeking to restrict the franchise proved far nimbler than the courts. “When the Supreme Court struck down Texas’s white-primary system,” I write in Injustices, white supremacists “simply found a new way to reinstate it. When white primaries were outlawed altogether, voter registrars could pick up most of the slack. Even if a judge systematically culled a county’s voter suppression tactics, striking down literacy tests and poll taxes and secret voter registration offices, the county could simply enact new policies intended to achieve the same goals.”
The solution to this problem, of course, was Section 5 of the Voting Rights Act, which required states with a history of voter suppression to “preclear” new voting rules with federal officials before that rule took effect. This system did not catch every new law that had a negative impact on voters of color — the Alabama maps at issue in Alabama Legislative Black Caucus were precleared by the Justice Department — but it did provide a check against state officials’ ability to out-hustle the courts.
Except, of course, that Section 5 is now effectively dead. The Supreme Court neutered it in a 5–4 opinion in 2013.