Court to weigh use of race in drawing political lines

Richard Wolf, USA TODAY 2:49 p.m. EDT September 1, 2014
WASHINGTON — Democrat Quinton Ross has represented a pretty safe district in the Alabama state Senate since 2002, when 72% of its voting-age population was black. In his last two elections, he ran unopposed.
When it came time to redraw the state’s political lines in 2012, however, Republicans who had won control of the state Legislature made it even safer for Ross, an African American. To replace voters who had moved away, they added 14,806 blacks and 36 whites to District 26, resulting in a 75% black majority.
The Legislature’s artistry had the intended effect throughout the state, racially and politically. It solidified the ability of black voters to elect their favored candidates, as mandated by the Voting Rights Act of 1965. And it made adjacent suburban and rural districts even more white – and more friendly to Republicans.
“The district was already at a point where you had quite a few blacks,” Ross says. “Sometimes, you can just go overboard.”
Now those maps are headed to the U.S. Supreme Court, where Alabama Democrats and African Americans will make an unusual request: that black voting strength in majority-black districts should be diluted. When it comes to making about three dozen legislative districts hospitable to black candidates, they say, enough is enough.
The case could affect similar disputes over district lines from Texas to Virginia, where Republicans who now control every Southern legislature have used the Voting Rights Act to their political advantage.
In Florida, a state circuit court judge recently ordered lawmakers to redraw one Democratic and one Republican congressional district and make them less exclusionary, to satisfy a state ban on political gerrymandering. In North Carolina, the state Supreme Court is due to hear an appeal by challengers that maps drawn in 2011 pack blacks in the same manner as Alabama.

“Our claim is you just can’t use race this way,” says Anita Earls, executive director of the Southern Coalition for Social Justice. “Our districts would be less politically polarized if the map drawers can’t use race.”

That’s the real goal of the various challenges, contends Michael Carvin, an appellate lawyer who has defended Republican redistricting plans in the past. This isn’t really about race, he says.
“They’re not trying to enhance minority representation. They’re simply trying to enhance white Democratic representation,” Carvin says. “This is all about politics.”
Civil rights groups have for decades hailed the Voting Rights Act, in part for helping to elevate blacks to political office. Now they say it’s being used to discriminate against African Americans.
Alabama is a case in point. Before 1970, the state Legislature had no black members. By 1993, there were 27 blacks in the House and eight in the Senate, representing districts ranging from 51% to 82% black.
After those districts lost population during the 1990s, Democrats who controlled the Legislature drew new lines that actually reduced the percentage of blacks in most of them — but not enough to jeopardize incumbents’ re-elections. That gave blacks, who tend to vote Democratic, more clout in surrounding districts.
When Republicans addressed the same situation after 2010, they did the opposite. About 64% of new voters added to those districts were black. And as a result, in most districts that had been only 30% to 50% black, those percentages were reduced.
A divided three-judge panel of the federal district court ruled that the plan did not violate the Constitution or the Voting Rights Act. But in their Supreme Court petitions, the Alabama Democratic Conference and Alabama Legislative Black Caucus say Republicans’ actions in maintaining the same number of black districts with at least the same percentage of black voters constituted a system of racial quotas.
The Democrats’ brief cites what it calls “stark racial intentionality in district-drawing – packing more supermajorities of black voters into already-majority black districts, without regard to whether such efforts were actually necessary in each district to allow black voters to elect candidates of their choice.”
Alabama Solicitor General Andrew Brasher says the Republican Legislature’s plan deserves to be upheld. He contends that race was just one of several factors lawmakers considered, such as protecting the integrity of county lines.
Preserving the ability of white Democrats to win election outside black districts certainly wasn’t among the factors Republicans considered, Brasher says. “What possible reason would the Legislature have had to do that?” he says.
Straddling the middle is the Obama administration, which might have been expected to side with Democrats and African Americans against the Republican Legislature. Instead, the Justice Department urges the justices to send the case back to the district court to decide whether the Legislature relied too much on race on a district-by-district basis.
“Evidence suggests that race may have predominated in drawing some districts” to maintain prior black-white percentages, the government says. “The precision with which the legislature achieved that objective strongly suggests an over-reliance on race.”
The upcoming oral argument, which is likely to be scheduled for November, shows that try as it might, the high court under Chief Justice John Roberts just can’t avoid high-profile race cases.
“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” Roberts famously wrote in a 2007 decision striking down school integration plans in Seattle and Louisville.
Yet racial discrimination cases keep coming to the court. In 2013, the chief justice himself wrote the decision striking down a key section of the Voting Rights Act that required mostly Southern states and counties to clear any changes in voting procedures with the federal government.
The Black Caucus challenge is based largely on the Supreme Court’s 1993 decision in Shaw v. Reno, in which a 5-4 conservative majority ruled that districts drawn predominantly because of race must meet a higher standard of review.
That case was critical of a majority-black district in North Carolina that weaved its way along Interstate 85, picking up black voters. But since then, the justices have looked more kindly on several legislative redistricting plans, ruling against Republican challengers in Georgia and Democratic challengers in Texas.
Justin Levitt, an expert on redistricting at Loyola Law School, says Republican legislatures in states from California to South Carolina have drawn districts in much the same way Alabama did.
“That is the playbook,” says David Bositis, a voting rights expert formerly with the Joint Center for Political and Economic Studies. “The Republicans have followed a plan of packing as many black voters into black districts so that the surrounding districts would be white.”
If the Supreme Court strikes down that practice, Carvin says, “It could jeopardize a number of districts throughout the South.”