Author: Jon Kelly, Associate Member, University of Cincinnati Law Review
Every ten years, a special ritual, steeped in political history, takes place in the United States. That ritual is the reapportionment and redrawing of state and federal congressional maps. Redrawing legislative districts serves to keep representation relatively equal among voters, i.e., to ensure each district has an equal amount of voters. Following the release of the census data, the political party in power has incentive to redraw districts in a manner that maximizes party control and protects incumbents. This strategy is called gerrymandering. Partisan gerrymandering, despite criticism, is permissible so long as voters retain a relatively equal voice (equal populations per district) and there is no discriminatory purpose in the redistricting.
On November 12, 2014, the United States Supreme Court heard arguments in The Alabama Legislative Black Caucus v. Alabama. The Court is expected to answer whether the Republican-controlled Alabama legislature took part in racial gerrymandering when redrawing state senate and house districts. In Alabama, the racial gerrymandering claims will likely fail because the redistricting was done under racial considerations but with regard to the mandates of the Voting Rights Act of 1965 (VRA). As such, Alabama’s state legislature engaged in permissible partisan gerrymandering, void of discriminatory intent. Given the nature of the questions the justices asked during oral argument in the case this past November, the Court is likely to agree that the VRA is invaluable to the redistricting process and uphold the redistricting.
An Overview of Redistricting
The decennial census is the nationwide survey of the American population, which, among other things, tracks population movement within and between the states. State legislatures, by virtue of state constitutions, have authority to redraw both federal and state congressional districts. Therefore, the political party that controls the state legislature has the power to redraw districts. By placing as many opposing party voters as possible into a single district—a process known as “packing”—the drawing party is more likely to win the surrounding districts that then hold small majorities of voters supporting the drawing party. Partisan gerrymandering is constitutionally permissible; therefore, the controlling party is able to distort and redraw districts in a way that ensures the most seats for their party in future elections. The resulting gerrymandered districts can sometimes end up as distorted districts that stretch around each other in convoluted shapes, rather than compact areas. However, partisan gerrymandering is subject to certain constitutional limitations.
State legislatures are limited in their ability to redistrict by both the federal and state constitutions. The Equal Protection Clause of the Fourteenth Amendment requires states to apportion their districts based on population. Equal population in each district ensures that no group of voters has a stronger voice in government than another. However, states can deviate from equal district populations in the interest of preserving political boundaries (e.g., county lines). The Equal Protection Clause also prohibits redistricting that has been shown to lack any rational basis besides racial motivation. Courts have held that race can be considered during redistricting but that it cannot be a predominant factor motivating the legislature. But if race is found to be a predominant factor (“racial gerrymandering”) then a strict scrutiny standard would apply to any challenge to allegedly racial gerrymandering.
The VRA places additional constraints on state legislatures with respect to racial apportionment. The VRA seeks to ensure that voters are given the opportunity to elect candidates that represent their interests. At issue in Alabama are the mandates of §§ 2 and 5 of the VRA. Section 2 of the VRA prohibits vote dilution, which looks to whether a racial minority votes in a politically cohesive fashion and lives in a relatively compact area, such that they should be able to elect a candidate reflecting their preferences. To remedy voter dilution claims, legislatures must create majority-minority districts—districts in which a racial minority constitutes a majority of voters. Legislatures are not required to maximize the number of majority-minority districts, but § 5 of the VRA requires that states with a history of voter discrimination not take part in retrogression—reducing the number of majority-minority districts from the previous district map.
The District Court’s Decision
On December 20, 2013, a three-judge court in the Middle District of Alabama rendered an opinion on Alabama’s recent redistricting plan. At the center of the case was the alleged packing of minority voters into districts that were already majority-minority districts. The legislature required a two percent population deviation between districts, not the ten percent limit from the previous map, which was determined by comparing the most populated with the least populated district. The previous district map, under the ten percent deviation rule, had already left the majority-minority districts under-populated compared to other districts. To bring these under-populated districts within the two percent deviation, while maintaining the majority-minority status, the legislature added hundreds and, in some cases, even thousands of minority voters to the districts governed by the new lines. The redrawn maps did not decrease the number of majority-minority senate districts, but instead added one majority-minority house district. However, the percent of African American voters in certain districts reached super-majority levels.
The Alabama legislature argued that the minority population in certain districts served to preserve majority-minority percentages in compliance with §§ 2 and 5 of the VRA. The Alabama Legislative Black Caucus argued that the Republican redistricting subjected minority voters to racial gerrymandering and voter dilution. Both of those claims were dismissed and the court held in favor of the state of Alabama. The district court considered the entire redistricting process taken by the Alabama legislature, including hiring a consultant and taking part in several rounds of revisions that attempted to appease recommendations from interests in the legislature. The court found that the voter dilution claims were invalid because the number of majority-minority districts was consistent with the proportion of African Americans in the state, the legislature possessed no invidious racial motivation in the redistricting, and African-American voters were politically active and able to choose the candidates they preferred. The court also rejected the racial gerrymandering claims, finding that while race was considered in the context of appeasing the VRA requirements, it was not the predominant factor, and so the legislature’s discretion was allowable. The court held that, even if racial considerations were a predominant factor, the redistricting decision would pass a strict scrutiny analysis because the actions were narrowly tailored to the compelling interest of the VRA. The court noted that compliance with §§ 2 and 5 of the VRA is a compelling interest, following the Supreme Court’s decision in League of United Latin American Citizens v. Perry, which held that following § 5 could be a compelling state interest because of the impossibility of adhering to both the VRA and Equal Protection Clause.
The Alabama Legislative Black Caucus appealed the district court’s decision and on November 12, 2014, the Supreme Court heard arguments in the case. The Court did not accept the entire appeal, but only agreed to entertain the racial gerrymandering claim. During arguments Chief Justice Roberts and Justice Scalia noted the tension between considering race in compliance with the VRA and still having to keep race from being a predominant factor to prevent a violation of the Fourteenth Amendment. Justice Kennedy voiced a concern that a case like this confuses racial gerrymandering with partisan gerrymandering, considering that in Alabama most African Americans vote Democrat and most whites vote Republican. Several other justices questioned whether the claim would even survive on remand, considering that no voter dilution had been found and therefore no specific district suffered harm.
Hold On to the Voting Rights Act
The Supreme Court should uphold the district court’s decision to dismiss the racial gerrymandering claims. Partisan gerrymandering is an old and common practice that occurs in any redistricting process a state’s legislature controls. Parties will inevitably redraw districts that are self-serving, but as long as they respect the right to majority-minority districts outlined by the VRA, legislatures act lawfully. To say that any racial consideration in redistricting constitutes racial gerrymandering would be to argue that the VRA is at odds with the Fourteenth Amendment. The VRA expressly demands some form of racial consideration in redistricting, since §2 requires that majority-minority districts be created when practicable. It is illogical for a legislature to be penalized for considering race when it has done so to comply with federal law. The district court was correct to state that compliance with the VRA would be a compelling interest that can excuse racial considerations in redistricting.
However, these types of racial considerations are important. Without racial considerations, African Americans would likely be disproportionately subject to partisan gerrymandering based on their strong association with the Democratic Party. There must be a middle ground that respects the functions of both the Fourteenth Amendment and the VRA, and allowing the VRA to serve as a compelling interest to justify redistricting actions does just that. As long as there is no malicious race-based intent, racial considerations are a necessary aspect of redistricting and should not be prohibited.
In the coming months, the Supreme Court will render a decision in this case that could have a monumental effect on the redistricting process, and therefore on elections across the country. Given the questions from the Justices at oral argument and the Court’s previous decisions in cases like League of United Latin American Citizens, they are likely to affirm the district court, and the Court would be right to make such a conclusion. The VRA and the Fourteenth Amendment serve important functions in that they protect the rights of minorities. However, the message of the two laws stand on opposite grounds: race neutrality vs. assured minority representation. The Supreme Court must allow legislatures to work with the cushion of compelling interest so that both the VRA and the Fourteenth amendment operate appropriately in the redistricting process.
 Some states appoint advisory committees, independent commissions, or third parties. Redistricting Committees: Legislative Plans, National Conference of State Legislatures (June 25, 2008), http://www.ncsl.org/research/redistricting/2009-redistricting-commissions-table.aspx.
 It is also accepted (even supported) practice to avoid redrawing districts in a way that would force two incumbents to run for election in the same district. See Bush v. Vera, 517 U.S. 952, 964 (1996).
 The Supreme Court has found that drawing districts for purely political reasons does not violate equal protection in itself, and requires a consistent (multiple elections) deprivation of voting influence. Davis v. Bandemer, 478 U.S. 109, 109 (1986).
 The term “Gerrymandering” was coined in 1812 when Governor Elbridge Gerry signed into law a redrawn district map, with one particular district that looked like a salamander. His name was then combined with salamander. Elmer Griffith, Dissertation, The Rise and Development of the Gerrymander, Chicago: Scott, Foresman and Co. pp. 72–73 (1907).
 There are also many limitations established among a majority of the states, but for the sake of brevity this article will only address relevant federal limitations.
 Reynolds v. Sims, 377 U.S. 533, 568 (1964). Shaw v. Reno, 509 U.S. 630, 649 (1993).
 Voter dilution refers to one possible effect of gerrymandering, and is prohibited by §2 of the Voter Rights Act. Generally, it is the dilution of a minority bloc’s ability to effect the outcome of an election, which violates one person one vote by effectively cancelling out their vote. Specifically courts look to 3 factors set out in Thornburg v. Gingles, 478 U.S. 30 (1986): (1) the racial group is sufficiently large and geographically compact to constitute a majority in a single-member district; (2) the group is politically cohesive; and (3) the white majority votes sufficiently as a bloc to enable it usually to defeat the minority’s preferred candidate. Ala. Legislative Black Caucus v. Ala., 989 F. Supp. 2d 1227, 1293 (M.D. Ala. 2013).
 Mahan v. Howell, 410 U.S. 315, 323–25 (1973). A commonly accepted limit is 10% deviation between the largest and smallest district populations, but this is not a bright line rule. The larger the deviation, the more compelling must the state’s justification for the deviation be. Justin Levitt, Where are the Lines Drawn, Loyola Law School, los Angeles (2014), http://redistricting.lls.edu/where.php#equalpop.
 Bruce M. Clarke & Robert T. reagan, Fed. Judicial Ctr., Redistricting Litigation: An Overview of Legal, Statistical, and Case-Management Issues (2002).
 Bush v. Vera, 517 U.S. 952, 958 (1996).
 Ala. Legislative Black Caucus v. Ala., 989 F. Supp. 2d 1227, 1293 (M.D. Ala. 2013).
 Bruce M. Clarke & Robert T. reagan, Fed. Judicial Ctr., Redistricting Litigation: An Overview of Legal, Statistical, and Case-Management Issues (2002).
 Section 5 of the Voting Rights Act was struck down in 2013 by Shelby County v. Alabama, but was still relevant during Alabama’s redistricting following the 2010 census.
 Bruce M. Clarke & Robert T. reagan, Fed. Judicial Ctr., Redistricting Litigation: An Overview of Legal, Statistical, and Case-Management Issues 13-14 (2002).
 Id. Majority-minority districts prevent vote dilution by creating districts where a minority bloc has the ability to elect representatives of their choice, as opposed to being outvoted in each district. For example, consider a state where a minority constitutes 20 percent of a state’s population. If every district is proportional to state population distribution, the minority would lose every election and have no candidates of their choice in office. Majority-minority districts allow the minority bloc to elect their own representatives by placing a disproportionate number of minority members within the district.
 Ala. Legislative Black Caucus v. Ala., 989 F. Supp. 2d 1227, 1247-1248 (M.D. Ala. 2013).
 Title 28, section 2284(a) of the United States Code requires a three-judge district court for apportionment challenges. The court must be composed of the original district judge to receive the complaint and two judges, one of which must be a circuit judge, assigned by the circuit’s chief justice. 28 U.S.C. § 2284(b)(1) (1994).
 Ala. Legislative Black Caucus v. Ala., 989 F. Supp. 2d 1227, 1245 (M.D. Ala. 2013). By deviation, the court is referring to the difference between the most populated and least populated districts in the state. E.g. If the most populated district contained 100,000 voters and the least populated contained 85,000, the deviation is 15% and fails the 10 percent rule.
 Lyle Denniston, New Ruling Due on Racial Gerrymandering, ScotusBlog (June 2, 2014, 3:22 PM), http://www.scotusblog.com/2014/06/new-ruling-due-on-racial-gerrymandering/.
 Majority-minority percentages reached as high as 76.8% in house districts and 75.22% in senate districts. Id.
 Ala. Legislative Black Caucus v. Ala., 989 F. Supp. 2d 1227, 1236 (M.D. Ala. 2013).
 Along with the Alabama Democratic Conference. Id.
 Id. at 1237.
 Id. at 1247-1253.
 Id. at 1286.
 Id. at 1293.
 548 U.S. 399 (2006).
 Ala. Legislative Black Caucus v. Ala., 989 F. Supp. 2d 1227, 1306-1307 (M.D. Ala. 2013).
 Richard Hasen, Argument Analysis: Hitting the “Sweet Spot” on Race, Party, and Redistricting, Scotus Blog (Nov. 12, 2014, 5:05 PM), http://www.scotusblog.com/2014/11/argument-analysis-hitting-the-sweet-spot-on-race-party-and-redistricting/.
 Id. Justice Kennedy’s concerns highlight why a case of this nature becomes so difficult. When minorities are so closely tied with one party and the majority aligned with another, the inevitable gerrymandering will fall along racial lines. This case would not likely receive as much attention, but Alabama’s history of poor race relations creates a more plausible case that racial gerrymandering was at play.
 Over 89% of African Americans voted for the Democratic Party. Richard Hasen, The Supreme Court’s Gerrymandering Conundrum, Slate (Nov. 11, 2014, 7:47 AM), http://www.slate.com/articles/news_and_politics/jurisprudence/2014/11/alabama_redistricting_supreme_court_did_legislators_redraw_district_lines.html.