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OPINIONS

Fine lines: Race and redistricting at the Supreme Court

The Supreme Court’s rules are often exercises in line drawing. Indeed, the Court has been asked to determine the rules for drawing lines in three cases this term–specifically, to determine limitations on how voting districts are redrawn around the country.

This week, we’ll look at two challenges the Court is entertaining this term to an Alabama redistricting plan: Alabama Legislative Black Caucus v. Alabama and Alabama Democratic Conference v. Alabama, which were consolidated and argued in November.

Redistricting, or the practice of redrawing the lines around state electoral districts, has a long and storied history. At least once a decade, electoral districts are redrawn based on population information. In many states, legislatures redraw the lines themselves, which creates an opportunity for elected legislators to try to arrange their districts for political advantage. Using this system for political gain is called “gerrymandering,” and got its name from the Boston Gazette after Massachusetts governor Elbridge Gerry rearranged electoral districts in 1812 to benefit his party, thereby creating a serpentine district that some thought resembled a salamander.

Such manipulation can redraw districts in order to create a “safe” seat for a given political party. This creates an electoral district where one party has an insurmountable majority of the votes, thereby assuring continued reelection for that party’s candidate. It can also be used to create districts where a given minority group actually has a majority of the votes in an electoral district (“a majority-minority district”), or divide voters so that no minority group will ever have a sufficient concentration in one district to sway an election. In short, as virtually everyone will agree, redistricting is an incredibly important issue in elections–and it matters how it’s done.

The two cases before the Court can be expected to shed light on one of the major questions for redistricting: how it can be legally carried out. (A third case, Arizona State Legislature v. Arizona Independent Redistricting Commission, is set to be argued in the beginning of March and asks who can legally draw the district lines–namely, whether a state legislature can delegate that authority to an independent commission.)

The two cases out of Alabama are both challenges to redistricting done after the 2010 census. As Richard Hasen notes in a detailed post on SCOTUSblog, the cases are the most recent in a complicated series about redistricting laws under the Voting Rights Act (VRA), but here’s the Reader’s Digest version: Section 2 of the VRA requires states to create a certain number of majority-minority voting districts where certain prerequisites are met, meaning that there is a legal obligation for states to take race into account in a limited way when redrawing district lines (to ensure that majority-minority districts are maintained). At the same time, however, the Court has ruled that a state violates the Equal Protection Clause of the Fourteenth Amendment if it makes race a “predominant factor” in its redistricting plan.

In Alabama’s 2010 plan, the state aimed to redraw districts so that there was no more than a two-percent difference in population between them, and aimed to keep the same number of majority-minority districts. Furthermore, the legislators in charge of the program determined that in order to comply with Section 5 of the VRA (a major part of which was subsequently struck down by the Court in 2013, in Shelby County v. Holder), they needed to maintain the percentage of African Americans in each voting district. Because the existing majority-minority districts were those with the lowest populations, Alabama redrew the district lines and effectively moved many more African American voters into the majority-minority districts. The challenges before the Court allege that this was actually a racial gerrymander: It moved many African American voters, who tend to vote Democrat, into the same few majority-minority districts, thereby making the rest of Alabama’s districts more solidly Republican.

These cases demonstrate the increasingly difficult status of race-based determinations under the law and as they come before the Court. In this context, as in the contexts of college admissions and fair housing, the Court is faced with the question of what it means to be race-sensitive without violating the law. In many cases like this, the doctrine has evolved in a way that requires or allows actors to take race into account for some purposes, but makes it illegal to use it too much or too often.

By and large, this leaves private parties to navigate an uncertain legal landscape. On one hand, they have laws passed in the Civil Rights era that view race-based determinations as a solution to discrimination. On the other, they are subject to recent judicial decisions which interpret race-based determinations as themselves discriminatory, in violation of the Equal Protection Clause. Like many legal debates, this one reflects changing social ideas about what race, structural inequality, and discrimination mean, and how they are best addressed. Answers to those questions won’t come from a judicial opinion. But the Court’s decision here might demystify how states and citizens can talk about race and voting in a legal context.


Michael Mestitz is the President of the Stanford Law Review. Chelsea Priest is one of the Stanford Law Review’s Managing Editors. Contact them at mmestitz@stanford.edu and cayres@ stanford.edu.