Racial Gerrymandering by Supreme Court Order Five Justices say Alabama must create a second black district in Allen v. Milligan.
Chief Justice John Roberts has wisely led the Supreme Court away from the political thicket of partisan gerrymandering, writing in Rucho v. Common Cause that he sees no “judicially discernible and manageable” standards to police it. But with an opportunity to clarify the law on racial gerrymandering, the Chief passed.
This is unfortunate, given the muddled status quo. The upshot of Thursday’s 5-4 split in Allen v. Milligan is to send Alabama back to the drawing board to create a second black-majority U.S. House district. Yet other states have tried that approach, only to be admonished by the Court that their maps were drawn with too much emphasis on race.
Alabama has seven House seats, with a black majority in one. That divides out to 14%. Yet the state’s voting-age population is 26% black. Alabama argued that when it redrew its House map after the 2020 census, it enacted only “race-neutral adjustments for small shifts in population.” But a federal district court ruled that the Voting Rights Act (VRA) requires a second majority-black district, for 29% representation.
Section 2 of the VRA says voting practices must be “equally open” and can’t give racial minorities “less opportunity” to “elect representatives of their choice.” The precedent for vote dilution is Gingles (1986), which set up a multipart test. The minority group must be “sufficiently large and compact” and “politically cohesive.” The “totality of circumstances” must suggest the political process isn’t equally open.
The trick is that Section 2 also explicitly says it creates no right for any group to have its members “elected in numbers equal to their proportion in the population.” Other High Court rulings have called racial gerrymandering “odious,” applying strict scrutiny if it’s a “predominant” factor for mapmakers. Alabama said its critics could draw two black-majority districts “only by starting with a ‘nonnegotiable’ racial target and backfilling with other redistricting criteria.” Sure sounds “predominant.”
But Chief Justice Roberts and the majority are sticking with Gingles. “The contention that mapmakers must be entirely ‘blind’ to race has no footing in our §2 case law,” he writes. “The line that we have long drawn is between consciousness and predominance.” He was joined in that remark by the three liberals. Justice Brett Kavanaugh skipped that section but signed the rest of the opinion. Apparently states must keep trying to find the golden mean of racial gerrymandering.
North Carolina once thought the VRA required another minority-majority district, and the Court struck it down. But in that case, the Chief explains, “the proposed district was not reasonably compact.” Georgia’s similar attempt failed, he continues, because it “could not create the districts without flouting traditional criteria.” Yet such criteria don’t save Alabama, which said its map avoided dividing the Gulf Coast “community of interest” in two.
Justice Clarence Thomas picks up this thread, writing in dissent and joined at least in part by the other three conservatives. “It is indisputable that the Gulf Coast region is the sort of community of interest that the Alabama Legislature might reasonably think a congressional district should be built around,” he writes. The maps presented by the plaintiffs scoop Mobile’s black residents into District 2 and “thus reduce District 1 to the leftover white communities.” If the state did this, Justice Thomas adds, “we would have no difficulty recognizing race as ‘the predominant factor.’”
That should be enough to decide the issue, but Justice Thomas is unsparing. He assails the “indeterminacy” of Gingles, its “logically unbounded” totality-of-circumstances test, and the constitutionality of court-ordered racial gerrymandering. “We place States in the impossible position of having to weigh just how much racial sorting is necessary,” he says. “Worst of all, by making it clear that there are political dividends to be gained in the discovery of new ways to sort voters along racial lines, we prolong immeasurably the day when the ‘sordid business’ of ‘divvying us up by race’ is no more.”
He’s right, and the trenchant quotation in that final line comes from none other than Chief Justice Roberts. Does he still believe it?
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