At The Supreme Court, Tracing A Fine Line Between Politics And Race

Nov 12, 2014
Originally published on November 13, 2014 12:38 pm

The election may be over, but at the U.S. Supreme Court on Wednesday, the justices grappled with an Alabama case that may have a big impact on the next one.

The case tests what kinds of gerrymandering are and are not acceptable under the Constitution. In the past, the court has said that if the primary motive for drawing legislative lines is to limit a race's influence, that's unconstitutional — but if it's to create a partisan advantage, that's OK.

The trouble is, it's often hard to tell the difference.

When Alabama's Republican-controlled Legislature drew new state legislative district lines after the 2010 census, African-Americans accused the Republicans of packing the black vote into a smaller number of districts. For example, the plan moved one-sixth of the eligible black voters from majority-white districts into districts that were already majority black. The challengers charged that the purpose was to consolidate the black vote and limit its effect.

Inside the Supreme Court chamber on Wednesday, lawyers Richard Pildes and Eric Schnapper opposed the GOP plan. They told the justices that the Republicans had used racial quotas by requiring that every majority-black district retain at least the same percentage of eligible African-American voters that were in the previous election map. Lawyer Pildes noted that, as a measure of just how far the state was willing to go, the GOP redistricting plan broke up counties — defying a state constitutional provision that requires counties to be preserved in redistricting.

Chief Justice John Roberts was suspicious of the allegations, saying that Attorney General Eric Holder would have come down on such a plan "like a ton of bricks."

But Pildes noted that the Justice Department had let slide similar concentrations of black voters in the state's 2000 and 1993 redistricting plans. Under those approved plans, the percentage of black voters was reduced in many districts, some by as much as 19 percent, he said.

Politics Or Race?

Justice Anthony Kennedy asked a "what's good for the goose is good for the gander" question: If the Democrats are allowed to reduce the number of minorities in a district for partisan purposes, so that reliably Democratic African-American voters are more spread around, then why can't the Republicans do the opposite?

"I sense that there's a one-way ratchet here," said Kennedy, frequently the swing vote in these cases.

Justice Antonin Scalia contended that black voters are moved in and out of districts "because we assume blacks are overwhelmingly Democrats."

Lawyer Schnapper, however, argued that the GOP plan was "very calculated and race-based."

He pointed to evidence that the GOP plan had not just moved whole precincts in and out of districts but had split precincts, meaning that Republicans relied only on racial census data and not precinct election outcomes.

Next up at the lectern was U.S. Solicitor General Donald Verrilli, taking a position embraced by neither side in this case. He urged the justices to send the whole case back to the lower courts, in part because it had used mistaken interpretations of the law as guideposts for evaluating the GOP plan.

Chief Justice Roberts noted that because the proposed map was drawn up before the court struck down provisions of the Voting Rights Act, any replacement map would be created under oversight that the Obama administration considers too weak.

"It is what it is," replied Verrilli.

What Would A 'Do Over' Look Like?

When it was Alabama's turn to argue, state Solicitor General Andrew Brasher told the justices that the state's motives were not racial; the Legislature was just trying to equalize the population in the districts and preserve the status quo in majority-black districts.

"But in no interpretation of the act does a 76 percent [black] district have to stay a 76 percent district," said Justice Elena Kagan, a sentiment with which Justice Kennedy seemed to agree.

"Justice Kagan's question points up the fact" that the defenders of this plan did not claim this was a partisan gerrymander, he said. If race was not the purpose, he asked, what was the purpose?

If you were forced into a "do over" on redistricting, Justice Samuel Alito asked Brasher, and the state comes up with a purely partisan plan that produces a "drastic reduction" in the number of African-American state senators and House members, would that be a violation of the existing Voting Rights Act provisions?

"Not necessarily," replied Brasher. "But I do not know what would happen, quite frankly."

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The Supreme Court grappled today with a case out of Alabama. It tests what kind of gerrymandering is acceptable under the Constitution. In the past, the court has said that if the primary motive for drawing legislative lines is race, that is unconstitutional. If it's partisan advantage, it's fine - trouble is it's often hard to tell the difference. NPR's legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: When Alabama's Republican legislature drew new district lines after the 2010 census, African-Americans accused the Republicans of packing the black vote into a smaller number of districts. For example, moving one-sixth of the eligible black voters from majority white districts into districts that were already majority black. They charge that the purpose was to consolidate the black vote, limiting its effect. On the steps of the Supreme Court today, Alabama House member John Knight noted that some new districts have black majorities that well exceed 70 percent.

CONGRESSMAN JOHN KNIGHT: They basically admitted that it was for racial reasons. And we call it stacking and packing.

TOTENBERG: But Alabama Solicitor General Andrew Brasher disagreed.

ANDREW BRASHER: Although those changes might've correlated with race, those changes were not driven by race.

TOTENBERG: Inside the Court chamber, lawyers Richard Pildes and Eric Schnapper oppose the GOP plan. They told the justices that the Republicans had used racial quotas by requiring that every majority black district retain at least the same percentage of African-American voters that it had in the previous election plan. Lawyer Pildes noted that as a measure of just how far the state was going to go, the GOP redistricting plan broke up state counties, defying a state constitutional provision that mandates counties be preserved in redistricting.

Chief Justice Roberts - I think the attorney general would've come down on Alabama like a ton of bricks if it had reduced those percentages.

Answer - that's not so. In the 2000 and 1993 redistricting plans approved by the Justice Department, the percentage of black voters was reduced in many districts, some by as much as 19 percent.

Justice Kennedy - if one political party can reduce the number of minorities in a district for partisan purposes so that reliably Democratic African-American voters are more spread around, then why can't the other party do the opposite? I sense that there's a one-way ratchet here.

Justice Scalia - black voters are moved in and out of districts because we assume blacks are overwhelmingly Democrats.

Lawyer Schnapper, however, argued that the GOP plan was very calculated and race-based. The evidence for that, he said, is that the plan moved not just voting precincts into and out of districts; it split precincts, relying only on racial data, not partisan outcomes.

Next up to the lectern was U.S. Solicitor General Donald Verrilli, taking a position embraced by neither side in this case. He urged the justices to send the whole case back to the lower court because it had used mistaken interpretations of the law. Chief Justice Roberts noted that if the court does that, Alabama would no longer be bound by the voting rights provisions that the Supreme Court struck down last year. Replied Verrilli, it is what it is.

When it was Alabama's turn to argue, state Solicitor General Andrew Brasher told the justices that the state's motives were not racial - that the legislature was just trying to equalize the population of the districts and to preserve the status quo in majority black districts.

Justice Kagan - but in no interpretation of the act does a 76 percent black district have to stay a 76-percent district, which is the position you are taking. Justin Kennedy appeared to agree. He said Kagan's question points out the fact that the defenders of this plan did not claim this was a partisan gerrymander. If race was not the purpose, what was the purpose?

Justice Alito - if you are forced to a do-over on redistricting and the state comes up with a purely partisan plan that produces a drastic reduction in the number of African-American senators and house members, would that be a violation of the existing Voting Rights Act provisions?

Answer - not necessarily, but I do not know what would happen, quite frankly.

Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.