Big Victory For Voting Rights As Supreme Court Tosses Lower Court Ruling on “Vote Packing”

The Supreme Court’s ruling in Alabama Legislative Black Caucus v. Alabama was a huge victory for voting rights and voting equality.  The issue in this case was “vote packing.”

By the usual margin of 5-4, the Court ordered the District Court to review the case. The bad news is this victory may be temporary, because the Supreme Courts didn’t throw out Alabama’s maps.  Instead, the Supreme Court punted the case back to District court, with instructions.

“Vote packing” is a form of gerrymandering that limits the impact of minority voters by concentrating them in as few, typically urban, districts as possible.

Alabama tried to say said it interpreted the Voting Rights Act to mean that it is required to “maintain roughly the same black population percentage in existing majority-minority districts.  Therefore, the vote packing really was the Voting Rights Act’s fault.

In essence, the lower court concluded that since this form of gerrymandering didn’t occur in every one of Alabama’s majority-minority districts, that there was no gerrymandering, overall, within the state.  Even if it was gerrymandering, the Voting Rights Act made them do it.

The Supreme Court’s majority argued that doesn’t mean vote packing didn’t occur in some districts and therefore the District court must consider racial gerrymandering in each of the individual districts identified by the plaintiffs in this case.

The District Court found the fact that racial criteria had not predominated in the drawing of some Alabama districts sufficient to defeat a claim of racial gerrymandering with respect to the State as an undifferentiated whole. But a showing that race-based criteria did not significantly affect the drawing of some Alabama districts would have done little to defeat a claim that race-based criteria predominantly affected the drawing of other Alabama districts. Thus, the District Court’s undifferentiated statewide analysis is insufficient, and the District Court must on remand consider racial gerrymandering with respect to the individual districts challenged by appellants.

The state said it interpreted the Voting Rights Act to mean the state must “maintain roughly the same black population percentage in existing majority-minority districts.”  So, after seeing that one predominately black district needed 16,000 more voters to achieve the goal of equal population, Alabama added 15,785 new individuals to the district.  Only 36 of these individuals were white.

This is a misreading of the Voting Rights Act, which not only reduced the impact of minority voters, it also gave Republicans an advantage.

As Justice Breyer explained, the VRA ”does not require a covered jurisdiction to maintain a particular numerical minority percentage. It requires the jurisdiction to maintain a minority’s ability to elect a preferred candidate of choice.”

The difference in interpretation is significant.  Choosing a candidate involves a majority vote of 51%.  If Black voters already comprise a majority in a district, then, in reality, increasing the population within that district, decreases the ability of minorities influence in other districts.  As Justice Breyer pointed out when explaining the results in an example:

Other things being equal, it would seem highly unlikely that a redistricting plan that, while increasing the numerical size of the district, reduced the percentage of the black population from, say, 70% to 65% would have a significant impact on the black voters’ ability to elect their preferred candidate.

The result of Alabama’s redrawn districts was, in reality, a reduction of influence by Black voters in the state legislature. Simply because the district was already predominantly Black, this move amounted to wasting votes on candidates that would have already won by simple majority in that district.

As Ian Mllhauser said in his analysis of the ruling, the way Alabama redrew its maps also effected the composition of the legislature in favor of Republicans.

In 2008, for example, 98 percent of African Americans voted for Democratic future President Barack Obama and 88 percent of whites voted for Republican candidate John McCain. This meant that, when the state drew maps that reduced the power of black voters, it also effectively boosted the power of Republican voters.

In a concurring dissent, Justice Thomas used the same flawed interpretation of the VRA, used by the District Court, to conclude it was to blame it for gerrymandering in Alabma.

In tandem with our flawed jurisprudence, the DOJ has played a significant role in creating Alabama’s current redistricting problem. It did so by enforcing §5 in a manner that required States, including Alabama, to create supermajority-black voting districts or face denial of pre-clearance.

While one cannot remove the importance of this victory, this case reflects the new reality of a Voting Rights Act without pre-clearance rules.

The maps that the Court ruled on were drawn in 2012.  Now the case will be heard again by the District Court and, in reality, it could still take several years to arrive at a final ruling on these maps.

In the meantime, Alabama’s legislature will have the opportunity to come up with new ways to suppress the vote, which will also wind their way through the courts at a pace akin to watching grass grow.

In short, for every ruling that scuttles an attempt to suppress the vote or minimize the impact of some votes, Republican lawmakers who benefit from vote suppression can pass another set of rules that will be in effect until they eventually wind their way through the judicial process.

This is the very problem that the Voting Rights Act pre-clearance provision, for the most part, had overcome.