Supreme Court Case Seeks Source of Alabama Gerrymandering

Nina Totenburg, NPR, November 12, 2014

The U.S. Supreme Court on Wednesday takes up the thorny question of what kind of gerrymandering is acceptable, and what kind is not. The court is being asked to decide whether a 2010 state legislative redistricting in Alabama overloaded some districts with black Democrats on the basis of race or party.

Voting rights cases scramble politics and race. In this case, it is the Democrats who are crying foul because of what they call unconstitutional quotas. In contrast, conservative Republicans, usually critics of racial considerations, this time are defending government classifications based on race.

In the 1990s, the conservative Supreme Court majority, in a series of decisions, ruled that if a redistricting plan is motivated predominantly by racial considerations, it is unconstitutional. Those decisions came in cases brought by conservative Republicans who objected to the Justice Department’s attempt to expand the number of majority black or Hispanic legislative districts under the Voting Rights Act in the South.

“Now, the tables are turned,” says election-law expert Richard Hasen, a law professor at the University of California, Irvine. “It’s the liberals and Democrats that are trying to use the racial gerrymandering claim to stop Republicans from packing reliable Democratic minority voters into a smaller number of districts.”

Case in point: Alabama, a state rife with ironic political twists and a history of overt attempts to suppress the black vote.

In 2000, Democrats controlled the state Legislature, and the redistricting process. They used their power to create districts with black majorities under the Voting Rights Act, while at the same time putting enough reliably Democratic black voters into majority white districts so that white Democratic candidates could build black-white coalitions and have a chance of winning.

By 2010, Republicans controlled the Legislature, and they set about consolidating the black vote into existing majority-black districts. Under the plan, about one-sixth of all eligible black voters were moved from majority white state Senate districts to majority-black districts. The result was that in some of those districts, the black majority increased to over 70 percent. At the same time, the majority white districts got whiter, and more safely Republican.

The redistricting came after the 2010 Census showed population shifts that made some existing districts way too big in population terms, and others too small. The Republicans tried to equalize the size of the districts. They also tried to maintain the same number of majority-black districts, but now contend that under the Voting Rights Act, a simple majority of black voters in those districts was not enough.

“The state cannot diminish the ability of black voters to elect their candidate of choice, for example, by making a district that was 65 percent black into a district that is 51 percent black,” says Alabama Solicitor General Andrew Brasher, who is defending the law at the Supreme Court on Wednesday.

Democrats disagree, and contend that the GOP plan calls for unconstitutional racial quotas. Richard Pildes, one of the lawyers representing the challengers to Alabama’s redistricting, argues that, “Alabama admits it used these racial quotas, but says ‘the Voting Rights Act made us do it.’ We say the Voting Rights Act does not require that, and therefore you had no legitimate reason to use racial quotas. Period.”

{snip}

Then, too, there is the argument, made by the state, that the reason it had to make majority-black districts blacker is that it was compelled to do so under the Voting Rights Act. As early as 2010, however, Alabama was attacking the Voting Rights Act in court, and in 2013 the U.S. Supreme Court, ruling in an Alabama case, struck down a key provision of the Voting Rights Act as unconstitutional.

{snip}

Ultimately, the question is this: Did Alabama’s Republican-dominated Legislature rely predominantly on race or on partisanship when it was redrawing its districts? For the past 25 years, the court has drawn a line between permissible redistricting, based on partisanship, and impermissible redistricting, based on race. Election expert Hasen argues that, sometimes, they are the same thing.

“Especially when we’re talking about the South, where African-American voters are voting for Democrats at above 90 percent, it’s artificial to talk about race and party being completely separate,” he says.

Similarly, the white vote is overwhelmingly Republican. In 2012, for instance, 84 percent of the white vote in Alabama was cast for Republican presidential candidate Mitt Romney, while 95 percent of the black vote went for Barack Obama.

{snip}

The court’s decision could have ramifications beyond redistricting. Some of the same principles apply in election law cases that involve everything from voter ID requirements to restrictions on absentee ballots and early voting.

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  • propagandaoftruth

    Part of the cost of diversity. Lawyers win!

  • JackKrak

    Dems love to cry about gerrymandering when they lose – like they did two weeks ago – but somehow never notice that just about every Urban American and Rodriguez American owes his seat to comically drawn districts created with the explicit goal of sending anyone but YT to Congress.

    • Are you ready to put the leftist hoopla over gerrymandering to bed? Hold my hand and come with me.

      In 2010, the national popular vote for Congressional candidates was 52.2% R 44.6% D. In 2014, 52.6% R 44.4% D. Notice how almost the same these results are.

      Remember, the 2010 votes were fed into the Congressional maps drawn in 2001 and extant from 2001-2011. This year’s vote is fed into these great evil Republican gerrymandered maps that are and will be extant from 2011-2021.

      So you feed just about the same two party percentage split into two different Congressional district maps, and what do you get? 242 seats in 2010, 250 seats in 2014. (I’m using Ace of Spades’s projection of 250, the final tally may be plus or minus one or two.) So this great Republican gerrymandered map only results in eight more Republican seats using the same popular vote percentages.

      Earlier this year, the NYT did a story about a study that several university professors did. They fed the 2012 Congressional vote, which in raw terms was slightly more Democrat than Republican, into thousands of hypothetical national Congressional districting maps, ranging from the craziest pro-Democrat to the craziest pro-Republican and everything in between. The researchers found that only a few of the craziest pro-Democrat maps would have resulted in an actual Democrat House majority; all the other maps, meaning most Democrat-favorable maps and all the neutral maps and pro-Republican maps, resulted in a Republican majority. It also found that the real world map drawn in 2011 is, on the researchers’ relative scale, a moderately pro-Republican map, and not a crazy one. Which makes sense, because not every state legislature in 2011 was Republican-run, and some Democrat-ones (think: California and Illinois) did favorable Democrat gerrymanders in those states. The researchers’ conclusion was that the main problem Democrats have in Congressional elections isn’t gerrymandering, (and they reminded us that gerrymandering’s original purpose was to draw short bus districts for blacks, the Republican benefit fell out of the design accidentally), but the fact that Democrat voters are clumped up in small geographical areas, i.e. big cities.

      The moral of this story: Eight seats. Wow. Some conspiracy.

      • MikeofAges

        “The main problem … [is] the fact that Democrat voters are clumped up in small geographical areas, i.e. big cities.”

        Yes, that’s the main problem they have. Each party and faction becomes the victim of its own politics. In addition to minority votes, the Democrats seek the support of mentally unstable and erratic youth. Maybe they even try to breed mental instability into them so as to more effectively garner their votes. But the price of this is inevitable consequence of mental instability — inconsistent participation. The other thing the Democrats try to do is use the power of government itself to create a one-party polity. People in less densely populated areas inevitably are going to resist this. For another thing, the Constitution itself was set up to constrain parties that use the power of government to create a one-party society. That is part of the rationale for the Electoral College. And for the tradition of representation by district.

        People just don’t like that old Constitution sometimes. The right sometimes doesn’t want to acknowledge 14th Amendment. The left doesn’t want to acknowledge the vast constraints against one-party rule built into the Constitution and left unchanged by the Civil War amendments. Saliently, the Electoral College. One that topic, I will say one thing for Barack Obama. He didn’t wring his hands and cry about the E.C. He came up with a plan for mastering the dynamic the E.C. presented and successfully carried it out.

    • MikeofAges

      Districts are not comically drawn. Either you create majority-minority districts or you divide the minority vote among other districts, with the possible consequence of electing a liberal from an otherwise predominantly conservative district. You can’t have it both ways in our system. You have to come down on one side or the other. I can’t speak for other people, but to me minority districts mean that people get to elect representatives who represent them. Creating majority-minority districts was a Republican goal as far back as the Reagan era. The purpose was to prevent gerrymandering.

      The Democrats today want to claim that majority-minority districts violate the Voting Rights Act, against the plain language and intent of the act. Their goal is to divide the minority vote among districts that otherwise are white and conservative in order to turn them Democratic. Majority-minority districts are a good deal. For us. And for the people who live in them too. When you wish for something and you get it, don’t complain.

      • DonReynolds

        In Texas, the Republicans decided to break up the Travis County (Austin) vote to get rid of a pesky longtime Liberal. They broke up the county and attached it to three mostly rural congressional districts, thinking it would eliminate the Liberal. It did not work out that way. In the next election, two of the three districts were disappointing……and the Liberal congressman…..yeah he got re-elected.
        My point is gerrymandering is only a shot every ten years and in the meantime people are very mobile and their politics and values are not set in stone.

      • M&S

        MOA,

        >>
        I can’t speak for other people, but to me minority districts mean that people get to elect representatives who represent them.

        >>
        Since when has that /ever/ happened? Hint: It’s not black:white, it’s rich:poor.
        Every war we’ve been in since 1862 has been fought -against- the wishes of the majority and where they couldn’t beat the majority, the government conned them with False Flags and preventable Ambushes.
        Was it a Democratic majority of Congress that put the Federal Reserve act in place?
        Did the majority of people actually want the 1964/65 acts (Hart Cellar etc.)?
        The entire ‘party’ system is a flagrant joke as it is not democratic but an attempt to balkanize and fragment a population that has not been, generally, stupider than their elected leaders since the late 1800s and, going from the 90% no-debate, absentee vote casting in the Senate are as well informed as their representatives. Or at least less cowardly.
        With the advent of advanced Telecomms in the 1950s we haven’t NEEDED representative rule more than half a century.
        What is more, where democracy has no business being in the racial deal brokering business for a minority (contradiction in terms) why is it that it is always our richest who support our worst (crime, intelligence, SES) to the detriment of the ‘majority’ which hired them?
        Finally, if the party system is not _designed_ to prevent democratic rule as responsibility to one’s race and majority electorate, why is it that elections, as almost the sole means to recall a sitting Congressman, happen only every 4-6 years?
        Why is it that our debates come down to mealy mouthed semantics rather than hard promises? Why is it that campaigns are characterized by funding limits and mud slinging media efforts when our people need opinions and that come down to yes-no on MAJOR issues like race privileges for minorities (Stimulus, Obamacare, ‘My People’ism in the Justice Department.) which we can HOLD A CANDIDATE TO in yearly or even twice yearly referendums on his/her voting habits as justification for recall.
        If democracy worked, Candidates would have to speak to issues set forth by popular decree in open debates which were fixed in number, all-inclusive of participants, regardless of party and PAID FOR BY US and no other, to limit the benefits and exposure of advertising dollars.
        None of this is true which means Companies and Corporations, who certainly represent a tiny minority (less the 2% of this nation’s population) have an overwhelming influence on the planks in the platform of bought and paid for Candidacy.
        While the resulting government can _never_ be run into the ground on the basis of broken word protection of hidden agenda governance.
        That governance of power by the powerful is not sponsored by blacks or Hispanics sir. They are pawns used to divide, disenfranchise and rob of hope the rest of us.
        Gerrymandering is just another angels-dancing pinhead moment to cover up the truth that, if you are white and middle class, you are an inconvenience to those who fear your progress. From above.
        Until we get that straight as to who the leaders and who the foot soldiers are in the ongoing race war against whites, there will not be a single step back from the abyss for us.
        1950: 27%
        2010: 16%
        2060: 9.8%
        2100: 4%
        Or nothing.

  • These kinds of cases have been litigated in the past, except the two sides have exchanged legal rationales.

  • SFLBIB

    “…in some of those districts, the black majority increased to over 70
    percent. At the same time, the majority white districts got whiter, and
    more safely Republican.”

    This is how Newt Gingrich first got elected to congress. The districts were re-drawn so blacks could send a black to congress. They got their black representative, but what they did was suck away blacks who vote democrat from the district Newt was running for.

    • MikeofAges

      But that’s good. People should be able to elect representatives who represent them.

  • Earl P. Holt III

    The solution — which was available from 2000 to 2006 — would be an Act of Congress that revokes the jurisdiction of the Federal Courts over state redistricting schemes, using Article I, Section 8, Clause 9 of the Constitution. (If only they had the guts…)

    • MikeofAges

      14th Amendment, Earl, and laws passed under the power to enforce granted Congress. Congress, though, has discretion as to how much or how little it will do. It could limit the federal government to interfering only in the most egregious situations. But don’t expect that to happen any time soon.

      • Earl P. Holt III

        I have to respectfully disagree: I think Congress has always had the power to remove original jurisdiction from the federal courts over a wide variety of cases, but Congress has never had the guts to act.

        The federal courts frequently claim that they act because of a vacuum of legislation by Congress over such matters, but when Congress actually acts, they are not free to engage in the kinds of judicial legislation evident in Gideon v. Wainright, and several other landmark Supreme Court cases which were pure legislation more characteristic of deliberative bodies.

        • MikeofAges

          That view is correct, I respectfully have to admit after reading the original document. The 14th Amendment did not take from Congress the power to regulate the jurisdiction of the federal judiciary. But I have issue with the failure of some on the right recognize that the 14th Amendment is part of the Constitution. The problem many on the left have is that they think the 14th Amendment is the Constitution, and that is not true either.

          The people who wrote the Constitution were not a bunch of bumpkins. The society of the American colonies at the time of the revolution was one of the most sophisticated the world had ever seen up to that day. The framers were highly versed in political philosophy and political theory and well aware of the historic abuses of government power and the risks inherent in one party rule and oligarchy. They strove mightily and generally successfully to prevent the abuses that might arise in one local polity from infecting the entirety of the confederation. See my other post in this forum.

          • Earl P. Holt III

            You are preaching to the choir. The 14th Amendment has been elevated to exceptional importancem because it is the “portal” through which the federal courts have made the Bill of Rights apply to individual states, when the Bill of Rights was only intended to apply to the Federal Government.

          • DonReynolds

            No, sir…..the problem many on the Left have with regard to the 14th Amendment is simple historical ignorance. The (13th and) 14th were both civil war amendments which specifically addressed the issue of slavery and how the former slaves would be treated as citizens. That was the intent and purposes. It did not apply to American Indians, or Eskimos, or sex offenders, or homosexuals, or convicted felons, or those serving in the military,

          • Earl P. Holt III

            I don’t disagree with you: The problem is that the principle I described is the PREVAILING VIEW among the vast majority of Law School Constitutional Law Professors and most Federal Judges, with the possible exception of Alito, Scalia and Thomas, and a few good men in the lower federal courts…

          • MikeofAges

            Your view, I don’t entirely agree with. Although it was adopted on account of the issue of status former black African chattel slaves, and would not have been adopted absent that issue, it nevertheless established a new fundamental right applicable to all, the right to the equal protection of the law.

            The view of the left goes far beyond my interpretation and into the idea that the 14th Amendment uprooted all previous arrangements and incorporated the states into the a entity operating under an unspecified new imputed charter. But the 14th Amendment does exactly what it says it does, make the principle of equal protection a right of all. You might want to know, in law schools, students sometimes are taught the interpretation that racial preference is justifiable on the basis of the theory that extreme circumstances justify the abrogation of 14th Amendment. By implication and extension, other constitutional rights as well.

            Conservatives in America have a problem, as noted by talk show host Michael Medved. He told one caller, “You try to make the good the enemy of the perfect.”

            I expanded on that to say, you try to make the better than what you have the enemy of the better than that. And better than that the enemy of the good, and so on. I guarantee, you I fall into the category of the “better than that” and I still get upbraided for it. No wonder all the faculty are leftists and all the students come out brainwashed. Nothing but the perfect is acceptable, and when you can’t get it, you leave everything to the other side so you have something to whine about.

          • DonReynolds

            Your optimism regarding the 14th amendment is not supported by the historic experience SINCE the ratification of the amendment. In fact, the 14th amendment did not give women the right to vote, it did not make citizens of the American Indian, ….. in fact, the simple principle of all persons having a right to equal protection of the law was never automatically true by mere application of the 14th amendment…..which in your view, would be automatic and irresistible. (I hope you remember the Equal Rights Amendment, another example of why your viewpoint is flawed.)
            Your view of the 14th amendment, and the views of the Left, are of a very recent vintage and have not been the over-reaching views of the judiciary or the law school professors in the past 140+ years, since the 14th amendment was ratified.

          • M&S

            The created a system by which the rich (as they, almost universally, were) rule through balkanization of democracy as 100:500 focused voting among other issues.
            In failing to note this potential for their own class to create problems at that point in the future of their land when ‘to make a buck’ was easier overseas than at home, they proved themselves less divinely inspired or Rationally Enlightened than history advertises them to be and left us STUCK with a system whereby the rise of one party rule occurs within the framework of an artificial morality that is centered on Christian masochism as the need to feel pure through wholesale destruction of one’s society and kin for the benefit of outsiders and minorities whose interests _rightly_ should be secondary to that of the indigene population.
            That suicidal altruism has been exploited by those who envy the freedom this country enjoys, _for whites_ and want that freedom curtailed that they may compete, evolutionarily, after their own hideous fall a the hands of a righteous man.
            Where the rich are convinced to betray their own through greed and where the well off are made to agree to it to cede a false sense of moral guilt as empathy, You Know Who is right there, pimping both sides to their mutual destruction.
            One party means one race. And where we cannot agree to anything else, we need only look to Ethnostate China, Israel and BRA to realize that the rules don’t have to make absolute sense in an idealized condition. But they still have to be followed.
            “For ourselves and our posterity.’ did not and does not, include blacks, Hispanics and race-killer Jews in the equation for whites survival.
            We must make a choice. Over whether absolutist morality and ethics will be held aloft, ‘to the last!’, like Excalibur vanishing into a sunset lake. Or if the drowning people who invented those moral standards will cease to apply their strictures or their benefits to anyone but themselves.
            And use that sword to cut the throats of those who are holding them under the water.

        • DonReynolds

          We will have to disagree over Baker v Carr, since I have no problem with one man, one vote……or the subsequent decisions that affirmed the same principle in other voting situations.
          It should not matter where I live and vote, my vote should weigh the same as any other vote…..neither exaggerated or discounted.

          • Earl P. Holt III

            “One man, one vote” was a canard: Blacks were allowed to vote, they just weren’t allowed to have their Congressional Districts drawn up in such a way that they were guaranteed the succession of criminal and corrupt black felons they have elected since that decision.

            Baker v. Carr gave the federal courts the authority to intervene in the redistricting schemes of state legislatures to ensure that blacks got a succession of Adam Clayton Powells, Charlie Rangels, Alcee Hastings, Hank Johnson (who feared Guam would “tip over” as a result of U.S. Naval exercises,) Sheila Jackson Lee, and a hundred other low-grade black morons who couldn’t find the Library of Congress without a Tour Guide…

          • DonReynolds

            The question in Baker v Carr (and Reynolds v Sims, two years later) was not whether a person could vote or not. It was not even whether blacks would be elected to represent any voting district on the state or Federal level. What is missing today are examples of what would be clearly egregious abuse of political discretion….. and THAT was the reason that the Supreme Court abandon its stance on political issues.
            My favorite example of egregious would be like the state legislature (Connecticut) where one representative was elected from a district with 191 voters and another representative in the same body (with the same voice) was elected from a district of over 82,000 voters.

  • Earl P. Holt III

    I see it all very clearly, now:

    After forcing state legislatures to gerrymander districts so that black voters MUST elect black legislators, (Baker v. Carr) the “Democrat” Party’s lobbyists and operatives on the Federal Bench now complain that this has resulted in too few WHITE “Democrats” being elected to office.

    In Texas, we refer to this phenomenon as “being hoist on one’s OWN petard…”

  • The Democrats are sorta in a bind here. That which they do to draw districts for blacks, they lose white liberals. So if they are successful in drawing new lies to help white liberals, they will lose blacks. The NAACP and legislative black cauci will whine. This is why in states that do redistricting that have enough blacks, the political alliance is white Republicans and black Democrats. It happened in Missouri in 2011, that alliance stuck together to override Jay Nixon’s veto.

    Though like I said in another comment in this thread, which is a cut and paste from one my election review posts, the Democrats are not hobbled by gerrymandering but by geographical ghettoization.

    • Earl P. Holt III

      I can’t remember his name, but I recall some demographer recently claiming that the exodus of whites from large, inner cities in America — since the 1960s — was “the greatest mass-migration in world history.”

      That’s why the Map of the United States — based on Congressional representation by party — is almost entirely RED, except where the high crime areas are…

  • DonReynolds

    They complain either way.
    If a congressional district is formed with 90 percent black voters, they get to elect their own representative. Not good enough, there are too many white congressional districts.

    If the black vote is split up in all the different congressional districts, they have influence with all members of congress. Not good enough, since the cannot also determine the outcome of any congressional elections as a minority of the vote.

    Blacks are 13 percent of the US population and they whine constantly about being outvoted. The solution is simple…..go where only blacks live and vote…..or certainly go where they are 87 percent of the population. Do it today. Do not wait another minute.