As Democrats struggled last week to salvage control of the Senate, they pushed to get as many black voters to the polls as possible, especially in the South. It’s no wonder: Blacks are the most reliable Democratic voters, and 89 percent of them ended up supporting Democratic candidates in the 2014 elections (a mark that was actually down from 2012). White voters, in contrast, came out heavily for Republicans in the South. In North Carolina, where incumbent Democrat Kay Hagan lost to Republican Thom Tillis, the GOP candidate got just 3 percent of the black vote. But as we all know, the black turnout was not high enough to beat back the Republican wave in North Carolina or elsewhere. In North Carolina in particular, black turnout was down compared with 2012. Recognizing this major overlap of race and party in the South is key to understanding Wednesday’s Supreme Court case involving a constitutional challenge to Alabama’s legislative redistricting. No one disputes that the Alabama Legislature packed black voters into a few legislative districts, thus strengthening Republican control in the majority of districts throughout the rest of the state. But whether or not that action is constitutional depends a great deal on whether the court views this as a case about race (in which case Alabama may have acted unconstitutionally) or one about party (in which case Alabama’s actions are constitutional, if unsavory politics as usual). Given current realities, this “race or party” determination is a wholly artificial exercise, but one that puts the justices in a very interesting spot.
The facts and legal circumstances surrounding the Alabama lawsuit are exceedingly complex—I have laid them all out in a detailed analysis at SCOTUSblog. To simplify greatly, the question before the court is not whether the Alabama Legislature impermissibly diluted the votes of black citizens by packing them into fewer districts. Challengers pressed that issue in lower courts but lost, and the Supreme Court refused to hear that part of the case. Instead, the challengers argue that Alabama engaged in an “unconstitutional racial gerrymander.”
Before 1993, there was no such thing in constitutional law as an unconstitutional racial gerrymander separate and apart from a claim of vote dilution. Then, in a case out of North Carolina called Shaw v. Reno, the conservatives on the court recognized a racial gerrymander as an “analytically distinct” claim based on separating voters in districts on the basis of race, often through oddly shaped districts, without adequate justification. As the claim developed, the court explained that racial gerrymandering was an “expressive harm” in which the government sends a pernicious message that race matters above all else in redistricting. Liberals rejected the claim, saying that racial gerrymandering without proof of vote dilution was no harm at all, and that there was no evidence that the shape of districts sent voters any message at all.