By Shobana Subramanian.
The Voting Rights Act of 1965 is not what it used to be. Last year, the Supreme Court struck down Section 4(b) of the VRA, which required states with a history of discrimination to have all voting legislation approved by the federal government (Shelby County v. Holder, 2013). The Court held that Section 4(b) violated the principles of federalism and equal sovereignty of the states, since the Southern states were singled-out based on historical records that bore no relevance to the social and political climate of today. The Court did not deny the existence of racism in political institutions but instead argued that the coverage formula included in the VRA half a century ago must be updated. Anything less would imply that the Southern states are incapable of change and must indefinitely pay for past sins. Congress could have used Section 5 of the VRA to update the coverage formula, but strong Republican opposition prevented the plan from moving forward.
Since being let out on legislative parole, the formerly covered states have implemented as many changes to election law as possible. Most controversial are the new voter ID laws passed by Texas, Mississippi, Alabama, and North Carolina. While Shelby County, Alabama was suing the Justice Department, the Alabama Legislature devised a plan to redraw the district map based on the 2010 census data. Now the Alabama Legislative Black Caucus (ALBC) is suing the state on the grounds that the new redistricting plan violates the Equal Protection Clause of the Fourteenth Amendment by diluting minority representation.
Since the 2000 census, many of the districts that were majority African American became under-populated relative to other districts. States are legally obligated to maintain districts that are approximately equal in population, so following the 2010 census, Alabama shifted several thousands of individuals to these majority-minority districts (Reynolds v. Sims, 1964). The ALBC argues that Alabama disproportionately moved African Americans to districts where they already held a majority, concentrating their political influence in fewer districts. These “super-majorities,” it claims, are evidence of the continued political segregation of black Democrats by white Republicans in the state legislature.
The Supreme Court has been very clear about the evils of racial gerrymandering. In Shaw v. Reno (1993), North Carolina was accused of concentrating black voters in a single majority-minority district, whose extraordinary shape spoke for itself. Ironically, the majority-minority district gave more political power to North Carolina blacks than they had had since just after the Civil War. Nevertheless, the Court held that all cases involving racial gerrymandering fell under strict scrutiny and that state legislatures should only redistrict based on race to the extent of complying with the VRA. Anything beyond that was forbidden.
In order for the ALBC to prove that Alabama engaged in racial gerrymandering, it would have to show that race was the primary motivator behind the redistricting. But that is unlikely. First of all, the redistricting plan was proposed two years before Shelby and therefore had to be approved by the Justice Department. The logistical hurdles of submitting and resubmitting plans to the federal government were enough to keep Alabama away from any mischief. Besides, the Justice Department approved the plan; the changes made in 2011 were not significant enough to arouse any suspicion.
In Reno v. Bossier Parish School Board (2000), the Court ruled that under Section 5 of the VRA, states could not alter voting law in a way that diminished minority representation. The ALBC reports that 64% of the people added to the majority-minority districts were black, even though blacks make up only 17% of the majority-white districts. This, the ALBC claims, is enough to prove Alabama guilty. Again, it is not. Yes, the redistricting was disproportionately targeted at blacks, but the motive behind that imbalance is less clear. Although it is generally preferable to judge the tangible outcomes of legislation rather than the underlying motives, there is no way of telling how the new district map will affect black representation, at least until the November election. Therefore, the ALBC can only challenge the motives behind the state’s actions, not the actions themselves.
Alabama’s intentions are easily explained. The state needed to comply with Section 5 of the VRA. It needed to ensure that blacks did not lose representation. It is not unreasonable to think that Alabama, in its own self-interest, actually wanted to comply with the VRA. The 2010 census revealed that the black population in these districts had fallen—it is entirely plausible that the state felt obliged to replenish that population.
If that was its motive, Alabama did not overstep the bounds set by Shaw. The ALBC admits that the state only sought to maintain existing majorities, not strengthen them. The percentage of black voters in some districts did, however, increase, but that was not due to any nefarious motive. It was because Alabama had been placed in the very difficult position of reconciling two interests that often came into conflict: In addition to maintaining the racial representation of the previous district map, the new map had to adhere to a stricter population standard. In 2011, Alabama restricted deviation in population size to 2%—previous legislatures had allowed deviations of up to 10%. Here, the state was motivated by the Supreme Court’s decision in Cox v. Larios (2004), which held that the 10% population size deviation in Georgia’s redistricting plan violated the “one person, one vote” principle espoused by Reynolds.
The ALBC must learn that it cannot have the best of both worlds. It wants majority-minority districts to remain, but only with the slimmest of majorities, so that a plurality of black voters can exist in other districts and influence other elections. However, the ALBC neglects the fact that the state is under no legal obligation to increase black representation; it is only forbidden from purposefully decreasing it. Regardless, black representation was not decreased—the percentages of state Senate and House districts that are majority-black remain exactly the same.
Moving forward, the Supreme Court is unlikely to perceive the testimonial evidence any differently than the panel of district judges that affirmed the redistricting plan. Instead, it will tackle the question of to what extent race can influence redistricting. Twenty years have passed since Shaw—a rational follow-up to Shelby would be to abolish all racial considerations in district mapping. Then judges would not have to ask themselves: Is this positive gerrymandering or negative gerrymandering? Any kind of gerrymandering would be wrong.
Under such a system, minority voters would be neither hurt nor helped. Congress would be less motivated to pass a new coverage formula, since a clearer set of rules would mean fewer loopholes, all but eliminating the need for Justice Department intervention. The states would retain their sovereignty and equality—Alabama would no longer be inferior to Massachusetts. Everyone would go home happy, in an ideal world at least. In reality, gerrymandering of one sort or another will continue to cause problems as long as those in power are willing to do anything to stay there.