Unicorns and Gerrymanders at the Supreme Court

The Justices reject Alabama's claims that its legislative redistricting wasn't intended to separate voters by race as chimerical.

R Barraez D´Lucca/Flickr
In Michael Mann’s 2004 noir film Collateral, Tom Cruise, as an out of town hit man, hires cabdriver Jamie Foxx to drive him around the darkened Los Angeles cityscape. With the meter running, Cruise enters a high-rise apartment building. A few minutes later two shots ring out and a body hurtles out of a high window. “You killed him,” Foxx says when Cruise reappears.
Cruise smiles that creepy smile. “I didn’t kill him,” he said. “The bullets and the fall did that.”
It’s strange “logic,” but it’s no stranger than the logic used by the state of Alabama in a redistricting case, Alabama Democratic Conference v. Alabama, which the Supreme Court decided Wednesday. Five Justices rejected the state’s wordplay, and sent the case back to a lower court to consider without the Cruise-style hair-splitting. It may be that, as election-law guru Rick Hasen argues on SCOTUSblog, today’s victory is small or temporary, but there’s still something invigorating about seeing five Justices reject this kind of old-style Southern mendacity.
Let’s start with an ugly fact: In most American states, drawing districts for the state legislature is not about voters but about parties. The side with the legislative majority tries to create “safe” districts where their own voters outnumber the other party’s; they also scatter concentrations of opposite-party voters so they won’t be able to elect members of their choice. And in Dixie, African Americans are the backbone of the Democratic Party, while Republicans are overwhelmingly white. Anything done for partisan reasons will have racial implications and vice-versa.
Map those facts against the background law of legislative districting. The applicable provisions are the Fourteenth Amendment, which guarantees “the equal protection of the laws” to everyone; the Fifteenth Amendment, which outlaws racial discrimination in voting; and the Voting Rights Act of 1965, which provides specific guarantees against racist voting practices.
The states can’t discriminate facially on the basis of race—that would violate the Fifteenth Amendment. The VRA enforces that rule by forbidding racist election practices that deny the vote or lock minorities out of the process. Under decisions from the 1960s on, Fourteenth Amendment Equal Protection means that legislative districts have to follow the rule of “one person one vote”—in other words, each district has to contain pretty much the same number of voters. (The most recent caselaw suggests that a variance of 5 percent from the average is about right.) At the same time, under a more recent line of Equal Protection cases, a state can’t conduct a “racial gerrymander”—can’t, that is, draw its districts with the “predominant” intent of separating voters by race—without a very good reason.   
Against that background, Alabama Democratic Conference challenges the most recent state apportionment, which occurred after the 2010 Census. The Alabama Republican Party was triumphant in the 2010 elections for the first time in a century, and it wasted no time producing a plan that, by a bizarre coincidence, produced more Republican districts, and fewer Democratic districts, than ever before.
The Alabama plan centered around two policies. First, the districts had to be of almost identical size—much closer to identical, in fact, than the Equal Protection Clause requires. Variance was to be 1 percent or less. At the same time, the legislature interpreted the VRA to mean that it should preserve every current district which was “majority minority,” and that each of these districts must also have precisely the same percentage of black voters—almost to the voter—as it did before. This required extremely pernickety transfers of black voters. In one instance, cited by Justice Stephen Breyer in his majority opinion, the state transferred 15,785 voters to a new district: 15,749 were black and 36 were white. This was, Breyer added, “a remarkable feat given the local demographics.”
But remember that second set of Equal Protection cases—the rule against so-called “racial gerrymandering.” Race can be—indeed, under the VRA, must be—one factor in districting. But if race is the “predominant” consideration in creating a district, those cases say, the plan must pass strict scrutiny.
The Democratic Party, and the legislative Black Caucus, challenged the new plan before a three-judge panel in Federal District Court. By a vote of 2-1 (the lone Democratic appointee dissenting), the court tossed the case, largely on technical grounds. It read the “racial gerrymander” claim as void because, it said, one set of plaintiffs lack “standing to sue,” and the others had challenged the program “as a whole” rather than any particular district—and there were plenty of districts where race was not a concern at all, much less the “predominant” one. On top of that, the two judges wrote, “the main priority of the Legislature was to comply with the constitutional mandate of one person, one vote,” not to separate voters by race.
That is the Tom Cruise moment—“I didn’t kill him, the bullets did.” Or to use a different analogy, it’s like saying that a football team’s motive in running the ball isn’t to win the game—it’s to comply with the rules of football. Any redistricting plan is required to comply with the Constitution. If that qualifies as a “predominant” motive, then no district plan will ever fail the “racial gerrymander” test. As Breyer’s opinion explains:

An equal population goal is not one factor among others to be weighed against the use of race to determine whether race ‘predominates.’ Rather, it is part of the redistricting background, taken as a given, when determining whether race, or other factors, predominate in a legislator’s determination as to how equal population objectives will be met.

Breyer was joined by Justices Anthony Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. Breyer’s majority opinion also suggested that the two-judge majority below had been too quick to reject pleadings that were a bit muddied. It had tossed one set of claims on easily fixable technical grounds, and others by reading the plaintiffs’ pleadings to make a nonsensical claim—one that, as Breyer said, turned the case into “a legal unicorn, an animal that exists only in the legal imagination.” Justice Antonin Scalia wrote a dissent, joined by the Chief Justice and Justices Clarence Thomas and Samuel Alito. Thomas wrote a separate dissent, only for himself.
The District Court had said the “racial gerrymander” claim didn’t matter anyway, because the plan would pass “strict scrutiny.” This standard requires that the specific plan be necessary (“narrowly tailored”) to achieve a “compelling” interest—one that a government really needs to further. In this case, the two-judge majority said, the “compelling” interest was in complying with the Voting Rights Act’s “non-retrogression” principle. But the VRA says only that state changes in voting may not “have the effect of diminishing the ability of any citizens of the United States on account of race or color ... to elect their preferred candidates of choice.” The legislature and the court claimed that this required precisely the same minority percentage in each new district as the old one, but that standard was their invention. There’s no fixed mathematical formula, Breyer pointed out; thus if one district went from, say, 72 percent black to 65 percent black, that would be unlikely to establish a violation.
There’s an irony in the result. The “racial gerrymander” doctrine was created in the early 1990s by conservative white voters in the South, who objected to being put into odd-shaped districts with what they considered to be “too many” black voters. Civil-rights advocates complained bitterly about those cases. At the same time, many civil-rights groups worked with the Justice Department to push for the creation of as many majority-black districts as possible.
Now the political landscape has changed. Maximizing majority-black districts is a nifty way for Republicans to minimize Democratic influence (it’s called “packing” Democratic voters into a few districts); and Democrats and African Americans are claiming to be the victims of such gerrymandering.
The Court’s decision yesterday did not throw out the plan. It set out the correct legal standard, and sent the case back to the same three judges with orders to apply it. We will likely see this case again.
But perhaps the decision will impel courts below to be more skeptical of state governments who say race did not “predominate” in districting plans. That would be all to the good. No judge would acquit Tom Cruise because “the bullets and the fall” killed his victim, and the same logic should apply to redistricting games.