Yesterday, in Alabama Black Caucus v. Alabama, the Supreme Court issued an important opinion in the field of voting rights jurisprudence. The question presented to the Court was whether the Alabama legislature's most recent redistricting plan—drawn in 2012, after the 2010 census—amounted to racial gerrymandering in violation of the Equal Protection Clause of the Fourteenth Amendment.
The gerrymandering claim arose from the plan's treatment of the "majority-minority" districts that are required by the Voting Rights Act—districts in which racial minorities have the ability to elect candidates of their choice. The plan, drawn by a Republican-dominated legislature, had two key goals: (1) a population deviation of no more than two percent across districts (the previous plan had featured deviations of up to ten percent), and (2) preserving both the percentage of minority members in each majority-minority district and the total number of majority-minority districts.
These goals derived from two principles underlying the Voting Rights Act: the one-person, one-vote principle, which requires that districts not have great disparities in the number of people in them, and the non-retrogression principle, which requires that redistricting plans not have the effect of diminishing minority voting strength.
In order to draw a plan that satisfied these objectives, the legislature shifted more minority voters into majority-minority districts. Black and Democratic legislators, together with voters and activist groups, brought multiple lawsuits challenging the plan on the ground that it divided voters on the basis of their race. Two of those cases were consolidated, and this opinion arises out of those two.
By a vote of two to one, a three-judge federal court upheld the redistricting plan, concluding that the state's predominant motive was complying with the one-person, one-vote principle, not gerrymandering. To the extent that voters were divided on the basis of race, the court held, that was necessary to comply with the non-retrogression principle. The plaintiffs appealed the district court's decision to the Supreme Court.
By a vote of five to four, the Supreme Court vacated the district court's decision and remanded the case for further proceedings. Justice Breyer wrote for the majority, which concluded as a threshold matter that the district court's "undifferentiated" statewide analysis was insufficient. Separately, in something of a change from past practice, the Court concluded that the district court had erroneously decided that one of the plaintiffs—the Alabama Democratic Conference—lacked standing to bring its claims, because the record supported inferences that the organization has members in all of the majority-minority districts in the state, and that those members voted in those districts.
Most importantly, the Court concluded that the district court had miscalculated "predominance" in its holding that race was not the predominant motive behind the new plan. In making that calculation, the Court wrote, the district court should not have considered the legislature's effort to create districts of approximately equal population in accordance with the constitutional standard of one-person, one-vote. Rather, the Court said, that goal is simply part of the redistricting "background"—the essential question is how it will be achieved. Finally, the Court held, both the state and the district court overemphasized the importance of keeping the same percentage of minority voters in majority-minority districts. Because the Voting Rights Act mandates only that minority candidates be able to elect a candidate of their choice in a majority-minority district, the precise percentage of minority candidates in the district need not remain stable to satisfy the statute's requirements. The Court did not find that Alabama's plan was in fact invalid, but remanded the case back to the district court for further proceedings.
Justices Kennedy, Ginsburg, Sotomayor, and Kagan joined Justice Breyer's opinion. Justice Scalia wrote the principal dissent, and the Chief Justice and Justices Thomas and Alito joined his opinion. Justice Thomas also dissented separately. Justice Scalia's main concern is that the Court's opinion allows the plaintiffs to "take a mulligan," and that the district court had correctly concluded that the plaintiffs pleaded only—and simply failed to prove—statewide (and not district-by-district) claims, and had even expressly waived any reliance on the arguments that the Court was now adopting. Likewise Justice Scalia wrote, the Alabama Democratic Conference failed to prove its standing before the district court and should not be given another chance to do so on appeal. Justice Thomas dissented to reiterate his long-standing concerns about the Court's Voting Rights Act jurisprudence, which in his view "is nothing more than a fight over the best racial quota."
On remand, the district court will be obligated to consider arguments targeted only to specific districts, and to allow the Alabama Democratic Conference to establish that its membership is sufficient to establish standing. Remand will also provide the Alabama State Legislature an opportunity to redraw the districts again, perhaps so as to avoid or mitigate the challenges to particular districts. Stay tuned.
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