In A Role Reversal, Democrats Want Limits to Voting Rights Act

The U.S. Supreme Court is seen October 6, 2014 in Washington, DC.

Photographer: Alex Wong/Getty Images

This time it’s the Democrats who want the U.S. Supreme Court to limit the Voting Rights Act.

Taking up a case that flips the customary dynamics on voting issues, the high court today hears arguments that Alabama Republicans unconstitutionally packed too many black residents into a handful of state legislative districts.

Republicans say they were trying to preserve black majorities and comply with the Voting Rights Act, the landmark 1965 law designed to protect racial minorities. Democrats call that a misuse of the law and an effort to dilute black voting strength elsewhere.

Democrats say the map violates a line of Supreme Court decisions limiting the role that race can play in redistricting -- putting them in the unusual position of relying on rulings issued by the court’s conservative wing.

The case shows “how much the world has changed in the voting rights context,” said Heather Gerken, an election-law specialist who teaches at Yale Law School in New Haven, Connecticut. Democrats are making arguments that “used to be made by conservative justices.”

The dispute will shape the extent to which lawmakers can take race into consideration when they draw district lines. The case may affect similar litigation elsewhere, including in Virginia, where a panel of judges recently struck down a Republican map in the face of similar objections.

Blacks are among the most reliable Democratic votes, especially in the Deep South where race and party affiliation are all but synonymous. The defeat last week of Representative John Barrow of Georgia means the U.S. House of Representatives won’t have a single white Democrat from that part of the country.

Defending Law

For decades, Democrats have defended both the Voting Rights Act and the related practice of creating districts with a sufficient number of racial minorities to ensure the election of some black and Hispanic lawmakers.

Yet in the latest case, Democrats say, Alabama Republicans misused the law when they took control of the state legislature in 2010, then redrew the district maps to reflect the decennial census.

The new maps shifted more than 120,000 black residents into state house districts that already were majority black and more than 105,000 into majority-black state senate districts. Those additions were designed in part to make up for the loss of minority population from those districts.

Diminishing Power

Black Democratic lawmakers sued, saying the shift diminished their political power by moving minority voters out of districts where they would have had more sway, including areas where white Democrats might have been elected.

Republicans say they took that step in part to comply with the Voting Rights Act. A provision in the law in effect at the time barred the state from taking any step that would reduce minority voting clout.

Alabama Attorney General Luther Strange says that provision, known as Section 5, meant the state should avoid reducing the minority population in majority-black districts wherever possible.

“The drafters tried to avoid reducing the black population in preexisting majority-black districts as a strategy to comply with Section 5,” the Republican attorney general argued in court papers.

The state also says it was acting to even out the population in the districts. In addition, officials say the new plan has the same number of majority-black House and Senate districts as the old Democratic-drawn map.

A three-judge panel agreed with the state, upholding the map on a 2-1 vote.

‘Naked’ Quotas

The suing lawmakers say Alabama’s map violates a line of Supreme Court decisions that say race can’t be the “predominant factor” in redistricting decisions. The first of those rulings, in 1993, centered on a North Carolina district that snaked 160 miles though the state picking up black neighborhoods.

Those cases divided the court along ideological lines, with the conservative wing backing stricter limits on the use of race.

In the Alabama case, it’s the civil rights advocates who are relying on those decisions. They say that in 13 House districts, the black population percentage under the new map is within 0.71 percent of the previous percentage.

“That pattern was unexplainable on grounds other than race,” a group led by the Alabama Legislative Black Caucus argued in court papers.

The dissenter on the three-judge panel, U.S. District Judge Myron Thompson, said the map was the product of “naked racial quotas.”

Section 5

The case is long on ironies. The provision Alabama cites in its defense, Section 5, was effectively overturned by the Supreme Court’s Republican-appointed majority in a 5-4 decision last year. In addition to protecting the voting strength of minorities, Section 5 required most parts of the South, including Alabama, to get federal approval before changing their voting rules.

In another twist, President Barack Obama’s Justice Department reviewed Alabama’s new map under Section 5 and cleared it to take effect. The Obama administration is now largely backing the challengers to the Alabama district lines.

The administration says the Justice Department review was a limited one that focused on compliance with Section 5 and didn’t consider whether the map’s drafters relied too heavily on race.

Demonstrating Neutrality

The upside-down nature of the arguments will challenge both wings of the court, said Rebecca Green, an election-law professor at William & Mary Law School in Williamsburg, Virginia. The court’s conservative justices will have to decide whether to abide by the rulings that limit race-based redistricting, while the four Democratic appointees must decide whether to “change their tune when the politics have flipped,” she said.

“It’s an opportunity for the court to demonstrate neutrality,” Green said.

Ultimately, both sides of the court might find reason to force Alabama lawmakers to redraw the map, said Nathaniel Persily, who teaches election law at Stanford Law School in California. He said some justices may use the case to express discomfort with the Voting Rights while others can question efforts to pack minorities into a few districts.

“This is the rare voting case on which liberals and conservatives may agree,” he said.

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