By Colleen Sharp.
A follower of the Supreme Court’s current term may be experiencing some déjà vu. After deciding the Voting Rights Act case Shelby v. Holder in 2013, the Court is once again delving into the issue of voting rights and redistricting. The Alabama Legislative Black Caucus and Democratic Conference are challenging the Alabama legislature’s redistricting after the 2010 census, claiming that it decreases African-American representation in the state’s legislative districts by spreading out minority populations across multiple districts.
If each congressional district includes an equivalent ratio of minority to majority racial members, the minority group will likely never be able to have a significant voice in the choice of any Representatives from their state. Because Congress recognized this possibility in the Voting Rights Act of 1965, decreasing the percentage of minority voters in a district is illegal under Section 5 of the Voting Rights Act. The problem that state legislatures are facing in reapportionment today is how to keep minority seats while allowing the voters to all be adequately represented in Congress–while also ensuring that their political party of choice will maintain a majority of the seats for the House of Representatives.
The Court’s position on race as a factor in redistricting is unclear, and this uncertainty has been revealed throughout the oral argument in the cases Alabama Legislative Black Caucus v. Alabama and Alabama Democratic Conference v. Alabama, which the Court heard together in December 2014. Normally, any discrimination based on race is evaluated using the Court’s highest level of scrutiny–strict scrutiny–under which Alabama would have to prove that it had a compelling interest for discriminating based on race. In reapportionment cases that claim racial bias, the Court uses a two-layered evaluation: first, it determines whether the state intended to discriminate, and then, it decides if the state’s reason for discriminating was valid.
While the petitioners (the Alabama Legislative Black Caucus and the Alabama Democratic Conference) claim that simply using race as the primary factor in redistricting necessitates strict scrutiny evaluation of the process, Solicitor General Donald Verrilli claimed during oral arguments that simply using race as the primary factor in redistricting does not justify a strict scrutiny evaluation. He argued that a knowledgeable intention to decrease the voting power of a racial group must also be proved in order to apply strict scrutiny. The justices have thus far not indicated a preference for one test over the other. If the Court is not able to determine which standard of scrutiny to apply, it will be very difficult for it to set a determining precedent with these cases.
This case itself is a result of indeterminate precedents because the Voting Rights Act has recently been before the Court in the 2013 case Shelby County v. Holder. In Shelby, sections 4 and 5 of the Voting Rights Act were in dispute: section 4 enumerated specific states and counties whose voting regulations would be subject to approval by a three-judge panel and section 5 deals with specific procedures associated with alterations to voting privileges. The Court’s opinion in the case Shelby v. Holder struck down section 4 as unnecessary in the present day, but it did not address section 5. This term, the Court is being forced to address this section of the Act in order to complete its evaluation of its constitutionality by addressing the restrictions on the percentages and how reasonable they are. This case serves as proof that redistricting cases do not have useful precedents to demonstrate when there is racial bias in redistricting practices.
The key problem with the existing precedents in this case is that they do not enable a complete understanding of racial bias. During the oral argument, the justices investigated the petitioners’ claim that the alterations to the Alabama congressional districts were motivated by a desire to disenfranchise minority voters. Justice Kennedy asked if it would be constitutional for the Alabama legislature to discriminate based on race if it were motivated by partisanship. Kennedy implied that if the Alabama legislature had used race in redistricting based on the knowledge that racial minorities tend to vote for Democratic candidates the redistricting would be constitutional. However, Kennedy implied the state’s action would have been unconstitutional if the state had based their redistricting process on a desire to devalue the votes of people from a certain race simply because they represent racial minorities. But in both hypothetical cases, racial minorities are being inadequately represented in Congress. The Court does not acknowledge that racial discrimination may exist without the express intent to discriminate based on race.
This view puts an enormous burden on the Alabama Legislative Black Caucus and the Alabama Democratic Conference because it is nearly impossible to identify the motivations of the members of the legislature while redistricting! The Court’s emphasis on intention in the law makes it impractical for a legitimate case to be made against current redistricting measures. The Court’s devaluation of the Voting Rights Act allows for racial discrimination in voting measures to persist as long as it is not stated as such while the assembly is making the law. Hopefully, in the case regarding Alabama redistricting, the Court will allow the facts of the case and the attributes of the redistricting measures to predominate in its opinion rather than a murky estimate of the legislature’s intentions.