Nick Stephanopoulos on the Alabama Redistricting Case

Here is a guest blog post from Nick Stephanopoulos:

The rapidly congealing conventional wisdom is that last week’s Alabama redistricting case was no big deal. And the conventional wisdom is mostly right. The case confirmed the prevailing understanding of racial gerrymandering claims: that they apply to individual districts rather than plans in their entirety; and that equal population is a background rule for redistricting, not a motive that can compete with race for predominance. The case’s interpretation of Section 5—that it does not require freezing districts’ minority population shares—also seems interesting but not too meaningful in a post-Shelby County world.

But while the case was no blockbuster, there may be more to it than meets the eye. Here are a few reasons why it may have some lasting significance. First, it establishes that minority plaintiffs can prevail in racial gerrymandering suits. This point was not entirely clear since every previous plaintiff in suits of this sort addressed by the full Court was a white voter. But now there can be no doubt that minorities also can claim that race was the predominant reason for a district’s construction.

Second, in the near term, the case probably spells doom for several other states’ district plans. Alabama was not alone in keeping districts’ minority population shares almost perfectly constant and then arguing that Section 5 made it do so. Among others, North Carolina and Virginia implemented nearly identical strategies, meaning that their plans now are on thin legal ice too. A decision that knocks out multiple maps in one swoop is not quite small potatoes.

Third, in the long run, the case would be very important if Congress manages to pass a new coverage formula. If Congress does so, then the case would provide the Court’s only interpretation of Section 5’s new language. And this interpretation is notable in that it rejects (without overt dissent) the most pro-Republican view of the amended Section 5. Future Republican line-drawers thus would not be able to claim that Section 5 compelled them to keep districts’ minority population shares in perpetual stasis. Instead, the provision would be construed more functionally, focusing on minorities’ actual ability to elect their preferred candidates rather than any rigid benchmarks.

Fourth, the case suggests that Justice Kennedy—the only Justice to switch sides from Shelby County—might not have a constitutional problem with preclearance itself. If he did have a problem with it, it would be quite odd for him to join an opinion that analyzed Section 5 as if it were constitutionally trouble-free. And if Section 5 is lawful, then there is more reason for Congress to prioritize the passage of a new coverage formula. Then a new formula could actually salvage the whole preclearance system (and not just lead to its invalidation on other grounds).

Fifth, and even more speculatively, the case might mean that a majority of the Court is concerned about the recent rise in partisan gerrymandering. The real story behind Alabama’s map, of course, is the pursuit of partisan advantage. The reason why the line-drawers sought so assiduously to keep the minority percentages constant is because they wanted to waste as many Democratic votes as possible, not because they were preoccupied with race. True, the Court studiously avoided any mention of this partisan dynamic. But the Court could not have been oblivious to it, and the case may signal the Justices’ willingness to bend other doctrines to block unfair plans.

Lastly, the case matters because it undermines potential Section 2 defenses against racial gerrymandering claims. Section 2 uses almost the same language as Section 5 when it refers to the election of “representatives of [minorities’] choice.” If Section 5’s version of this language does not require freezing minority population shares, then, most likely, neither does Section 2’s. So in the future, states should not be able to justify Alabama-style plans on the basis of Section 2 compliance either. Neither pillar of the Voting Rights Act appears to require treating minority population shares as if they were set in amber.

To reiterate, I agree with the emerging consensus that the Alabama case is no redistricting earthquake. But its tremors still may be felt for longer than most observers have supposed.

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