By the end of Wednesday’s oral argument in Alabama Legislative Black Caucus v. Alabama and Alabama Democratic Conference v. Alabama, it was not clear whether the state of Alabama or challengers to its state redistricting plan would be likely to win the racial gerrymandering claim currently before the Supreme Court. Nor was it clear how the Court would separate permissible partisan gerrymanders from impermissible racial gerrymanders. But the argument left little doubt that, one way or another and sooner or later, Alabama is likely to have a legislative districting plan which helps the state’s Republican legislators and minimizes the voting power of the state’s Democrats and African Americans. The legal landscape and factual background of this case are exceedingly complex and laid out more fully in this argument preview. The case concerns a challenge to state legislative districts drawn by the Alabama Legislature after the 2010 census. The legislature, newly controlled by Republicans, drew a redistricting plan that contained the same number of majority-minority Senate districts and one additional majority-minority House district compared to the 1990s plan drawn by a court and the 2000s plan drawn by a Democratic legislature. Because of population shifts and declines, as well as the composition of the original 2001 districts, the African-American districts were the most underpopulated of all the districts, meaning that many voters had to be shifted into these districts to comply with “one person, one vote” requirements.
The state legislative leaders in charge of redistricting set as a goal a deviation in population of no more than two percent across districts. Further, the leaders instructed the consultant charged with redistricting to maintain not only the same number of majority-minority districts in the two state houses but also the same percentage of African Americans within each district. The leaders and consultant indicated they kept the same percentage of African-American voters in each majority-minority district in order to comply with the non-retrogression principle of Section 5 of the Voting Rights Act.
The result of these two commands led to the shifting of many more African Americans into these majority-minority districts. The upshot of these changes in the context of Alabama was to pack more of the state’s African Americans, the state’s most reliable Democratic voters, into fewer districts, thereby strengthening Republican voting power in districts throughout the rest of the state.
Black and Democratic legislators, voters, and groups brought a number of challenges to the state redistricting plan, including a vote dilution challenge under Section 2 of the Voting Rights Act and racial and partisan gerrymandering claims. A three-judge federal court divided two to one on the racial gerrymandering claim, the only claim currently before the Supreme Court. To win on a racial gerrymandering claim, the plaintiffs need to show that race was the “predominant factor” in redistricting, more important than traditional redistricting principles. If the state can show it complied with traditional districting principles or even that its intention was purely partisan, not racial, the state would win.