Lyle Denniston looks at the controversy over drawing new election districts when race is taken into account as an attempt to remedy past discrimination.
THE STATEMENTS AT ISSUE:
“I began my process by filling in the minority districts, not to do away with any of those and not to regress any of those. And as they grew, we made sure that they grew in the same proportion of black residents that they had or as close to it as possible. And what was left, we just – it was basically fill in the blanks with what was left.”
– Alabama state Senator Gerald Dial, a key figure in the 2012 redistricting of Alabama’s state legislature after the 2010 Census, in testimony about the legislative draftsmen’s focus on racial factors. The testimony was given in a lower court in the trial of a case that the Supreme Court will be reviewing during its next term, starting in October. Senator Dial’s remarks are a part of the record in that case (Alabama Legislative Black Caucus v. Alabama).
“To me, this case is simple. In drawing the black-majority districts, [legislative leaders] were driven by an overriding consideration: the race of those individuals who would be included in or excluded from those districts. They adopted racial quotas for each district, and they went to extraordinary lengths to achieve those quotas….Because the state has offered no sufficient justification for the use of racial quotas, the plans are unconstitutional, and I would so hold.”
– U.S. District Judge Myron H. Thompson of Montgomery, Ala., in a dissenting opinion in the Alabama Legislative Black Caucus case, as the majority of a three-judge panel upheld the redistricting plan.
WE CHECKED THE CONSTITUTION, AND…
Under the Constitution, government officials are not supposed to sort people by race, for any public benefit. If they do, they have to come up with the strongest policy reasons, and even those will be severely tested in court. The really hard part comes when race is taken into account as an attempt to remedy past racial discrimination. When does that become a new form of discrimination?
Courts have long struggled with that remedy issue, and in no field of law has that effort been more difficult than in drawing new election districts, as almost always has to be done after each new federal Census. Populations do shift over 10-year spans, and districting maps thus may get out of date. Racial calculations do enter into the map-drawing process, for the simple reason that federal voting rights law requires it.
In a state where voting tends to occur along racial lines (whites tend to vote together, minorities tend to vote together), minorities may always be outvoted if election arrangements are made on a completely color-blind basis. So, federal voting rights law insists that, when voting ordinarily follows racial lines, arrangements have to be made to give minority voters a chance to choose representatives whom they prefer and who will take their interests into account.
The result is the creation, intentionally, of what are somewhat clumsily called “majority-minority districts” – that is, election districts in which a racial minority has enough power in numbers to control or nearly control election outcomes. As a result of the creation of such districts, the number of minorities getting elected to public office, especially to state legislatures, has grown markedly in the past half-century.
Lurking in this situation, though, has always been the possibility that, if minorities are confined largely to specific districts, their preferred candidates win in those districts, but political power is isolated there. In effect, something like racial political ghettoes are established. Statewide, minority voters as a whole may have no influence anywhere except in the districts that they dominate. Thus, coalitions along racial lines are made even more difficult.
It is generally assumed, by election experts, that a minority has a good chance of electing the representatives it prefers if it has 40 percent or more of an election district’s population. The more that figure rises, the more likely minority political wishes will prevail.
But is there a point at which intentionally raising that percentage goes too far? This is the problem of “packing” – adding more and more minority voters to districts where they already do or tend to control outcomes. If a majority-minority district is a good thing, legally speaking, is it even better if the percentage rises to, say, 75 percent or more? Election outcomes are, of course, almost certainly guaranteed at that level.
A constitutional question arises: Is a majority-minority district the result of a “racial quota” if it had more than 60 percent minority population the last time around, and now is boosted up to 70 percent or more? Are voters being assigned to a district based on their race to too great a degree?
That is the issue the Supreme Court has now agreed to take on. The leaders of Alabama’s state legislative redistricting process two years ago decided that they would start, in drawing new maps after the 2010 Census, with the districts with black majorities. They thought that, in order to obey federal voting rights law, they had to keep the same number of those districts as after the 2000 Census, in the state house and in the state senate, and they also thought that they could not reduce the percentage of minority population.
There had been population shifts, of course, so they had to go searching for black voters outside the existing districts, in order to meet the twin purposes they thought were mandated by federal voting rights law. So, they found tens of thousands of black voters and shifted them into the existing majority-minority districts. With few exceptions, the percentages went up, reaching as high as nearly 78 percent.
Not one black member of the legislature voted for the new maps, because they saw this as “packing,” an attempt to concentrate black voting strength in the existing districts, and to minimize the chance that, if left in other districts, they could team up with white voters to make new political coalitions favorable to their interests.
Lawsuits resulted, from black members of the legislature and from an organization of black voters from across the state. And the challengers lost. Their appeals to the Supreme Court will unfold in coming months, with the prospect that a final decision, perhaps at about this time next year, could produce a major new precedent on when racial selection goes from positive to negative, constitutionally.
Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 56 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.
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