The US Supreme Court on Wednesday grappled with the sensitive issue of how much state lawmakers may rely on race to draw new voting districts for state legislative seats.
Wednesday’s case involves a plan drawn in 2012 by the Republican-controlled legislature in Alabama, a state with a long, notorious history of engaging in racial discrimination.
The case is being closely watched because it marks the first time the high court has considered a voting rights case since deciding 5 to 4 in June 2013 to strike down a key portion of the Voting Rights Act. The invalidated portion of the law required certain jurisdictions – including Alabama – to obtain federal permission before enacting any election changes.
The Alabama plan was approved by the Justice Department, but two political groups and several African-American elected officials filed lawsuits claiming tens of thousands of black voters were “packed” into existing majority-black voting districts in a way that diluted their overall voting clout.
Lawyers for the groups told the justices Wednesday that the Republican lawmakers used the equivalent of racial quotas to determine how many African-Americans to move from primarily white districts into majority-black districts.
“Racial quotas in the context of districting are a dangerous business,” Richard Pildes, a New York University law professor representing the Alabama Democratic Conference, told the justices.
He said such tactics can help minorities facing racially-polarized voting get a fair chance to elect their candidates of choice. But he added that packing voters into districts by race threatened to further polarize and isolate by race.
Several conservative justices expressed skepticism about the challengers' attempt to overturn the new plan.
Chief Justice John Roberts questioned how state lawmakers would be able to “hit the sweet spot” between discrimination and compliance without taking race into consideration.
At the time the Alabama plan was drafted, the state was required to submit any election law changes to the Department of Justice in Washington for pre-clearance under the Voting Rights Act. That law required that the state not permit any retrogression in the ability of minority voters to elect candidates of choice.
How can that be done without some consideration of race, several justices asked.
“Retrogression has never meant merely reproducing racial statistics purely for their own sake. It’s meant preserving the ability to elect, preserving majority and minority districts,” Mr. Pildes said.
“Oh, you can say that,” Justice Antonin Scalia replied.
But the only way to know you are in compliance with Justice Department requirements is by maintaining the same minority population percentage, he said.
Pildes said that wasn’t necessarily true. He said the Justice Department had approved new districts with reduced minority populations when the new plan didn’t reduce the ability of minority groups to elect candidates of their choice.
“Black turnout and black registration rates in Alabama now routinely equal or even exceed white registration and white turnout rates,” Pildes said.
“You realize, I assume, that you’re making the argument that opponents of black plaintiffs used to make here,” Justice Scalia said.
Scalia said the old argument was that, by packing minorities into certain districts, their political influence statewide would be reduced.
Pildes acknowledged the irony. But he said the Voting Rights Act strikes the proper balance by requiring the use of race only in limited circumstances to counter polarized voting.
In defending the new redistricting plan, Alabama Solicitor General Andrew Brasher said the 2012 redistricting was designed to reverse a gerrymandered plan enacted by a Democrat-controlled legislature in 2001.
Under the Democrats’ plan, many majority-minority districts were left significantly under populated. This allowed the drafters to move African-American voters – who are considered reliable Democratic voters – into majority white districts where they might help elect white Democrats.
To counter the Democrats’ plan, the Republicans in 2012 enacted a provision requiring all districts in the state to be populated within two percentage points of each other.
The earlier Democratic plan allowed significantly more leeway, permitting up to a 10 percent difference in population from district to district.
The Republican plan meant that significant numbers of voters would have to be shifted from majority-white districts into under-populated majority-black districts.
It is this action that is challenged by the plaintiffs. They argue that the Republicans relied exclusively on population statistics to move large numbers of African-Americans into majority-black voting districts.
They said the law does not support such raw use of race. Instead, officials are required to perform a detailed analysis of voting trends and other factors, without significant reliance on the race of prospective voters.
Under questioning by the justices, Mr. Brasher acknowledged that the Republican plan relied on race as a component of the redistricting. But he said it was not a primary purpose of the new plan.
“Don’t you have to use race to comply with [the law]?” Scalia asked.
“That’s right,” Brasher replied.
“But you don’t have to use race in this way,” Justice Elena Kagan interjected.
She said no one would say the state must maintain a 78 percent African-American population of a voting district if 78 percent was no longer necessary to elect candidates of choice, she said.
Brasher disagreed. He said Alabama followed the same strategy used successfully by Georgia in seeking pre-clearance from the Justice Department in 2005.
The case before the high court represents two cases consolidated for argument. They are Alabama Legislative Black Caucus v. Alabama (13-895), and Alabama Democratic Conference v. Alabama (13-1138).
A decision is expected by June.