The SCOTUS Should Reject Alabama’s Legislative Districts

With roughly 80% of Alabama whites voting Republican and 90% of African-Americans voting Democrat, it’s been easy for the state’s legislative leaders to deny they had any explicitly racial intent in compressing black voters into a few electoral districts and “whitening” the neighboring districts to elect more Republicans. Districting along party lines is the prerogative of whatever party controls the process, and if citizens are voting in racial blocs, what can a loyal Republican or Democrat line-drawer do but follow that pattern — and perhaps even intensify it when “voting rights” laws facilitate the design of “majority-minority” districts to enhance non-white voters’ opportunities to elect “candidates of their choice”?

That’s the gist of Alabama’s defense this week in a suit brought by the state’s Legislative Black Caucus. The Supreme Court must decide whether the line-drawers acted racially, and therefore unconstitutionally, or for purely partisan purposes. But poor leadership on both sides of this question has intensified racial polarization even when voters have tried to transcend it, even in the Deep South. The Court should rebuff line-drawers in a way that points beyond both racialism and partisanship in districting.

Anyone doubting that racism does drive southern state legislators’ partisanship need only recall how willing their predecessors were to be Democrats – and then Dixiecrats, a third party that segregationists formed when Democrat Harry Truman challenged them. Right up through the 1950’s the Republicans posed as the party of Lincoln: Richard Nixon was a card-carrying member of the NAACP, and Senator John F. Kennedy courted segregationist fellow Democrats, who abandoned the party fully only after Lyndon Johnson found the courage to push through the Voting Rights Act of 1965. Successors of these Democrats-turned-Republicans have now even concocted voter-identification laws that New York University’s Brennan Center for Justice believes depressed the 2014 minority turnout just enough to help some Republican win. Their racism cannot be doubted.

But, as I describe in Liberal Racism, civil-rights advocates, too, entrenched polarization in the 1980s by intensifying racial districting. Assistant U.S. Attorney General for Civil Rights Deval Patrick led some such efforts, although he would later be elected governor of Massachusetts by an overwhelmingly white electorate. Only when the Supreme Court invalidated some minority-majority congressional districts in Shaw v Reno and other cases in the mid-1990s did their black incumbents – in Texas, Georgia, and Florida — prove that blacks could win in new, majority non-black districts, discrediting some voting-rights activists’ fatalism about the persistence of racial bloc voting.

The Voting Rights Act has quite rightly stopped partisan map-drawers from dispersing voters in an existing black community such as Brooklyn’s Bedford-Stuyvesant into several heavily white congressional districts that wouldn’t send black candidates to Washington. But the act overreached by telling line-drawers, in effect: “If you can connect even the farthest-flung, otherwise unrelated enclaves of blacks or Hispanics to create a majority-minority district, you must do so.”

Some such districts have become what the British call “rotten boroughs” whose office-holders were almost the only people in them acquainted with all their enclaves. And “whitened” neighboring districts are more narrow politically. That the Supreme Court was right to block such districting was confirmed in the 1996 elections just mentioned. Since 1963, in fact, overwhelmingly white electorates in some states have chosen blacks such as U.S Senator Edward Brooke and Governor Patrick in Massachusetts, Senators Carol Moseley Braun and Barack Obama in Illinois, and Gov. L. Douglas Wilder in Virginia, seat of the old Confederacy. As early as 1972, civil-rights leader Andrew Young was elected to Congress by a mostly white district in Georgia, as were other blacks in the 1970s and ‘80s, including Republicans Gary Franks in Connecticut and J.C. Watts in Oklahoma.

This year, U.S. Senator Tim Scott, a black Republican recently appointed by South Carolina’s governor, was elected in his own right. The election analyst Jerry Skurnik of PRIMENY informs me that two new black Republicans were elected to the House: Mia Love, from a majority white district in Utah, and Will Hurd, who defeated an Hispanic Democrat in a majority non-black Texas district. Democrat Bonnie Watson-Coleman has been elected in a majority white district in New Jersey. Among older black congressional incumbents, Joyce Beatty of Ohio, Andre Carson of Indiana, Emanuel Cleaver of Missouri, and Keith Ellison of Minnesota represent districts with more whites than blacks.

So what’s Alabama’s or any state’s “partisan” excuse for continuing to pack blacks into a few, tight, districts under rules that have been discredited and that Republicans themselves once denounced? The answer is that by creating racially distinct districts only for partisan purposes, they’re keeping black and other minority voters out of other districts where they might help to elect Democrats – even white Democrats -and broaden those districts’ political cultures and concerns in ways a healthy, partisan democracy should.

When Rep. John Lewis of Georgia, a hero of the civil rights movement, defied segregationist violence, he was hoping “to create an interracial democracy in America… not separate enclaves,” and “to create a climate in which people of color will have an opportunity to represent… all Americans.” That opportunity is now real in statewide and even nationwide elections. There’s no reason to frustrate it in districts.

California has already shown that non-partisan, non-racial districting is better for both minorities and democracy. If the Supreme Court decides that practices like Alabama’s are acceptable because they’re merely partisan, it will uphold only a partisanship that has been corrupted by both conservative racism and by a well-intentioned liberal racialism that abetted it for two decades before becoming wise enough to abandon it.

Jim Sleeper

Jim Sleeper is a lecturer in political science at Yale. He is the author of The Closest of Strangers: Liberalism and the Politics of Race in New York and Liberal Racism.