SCOTUS, Race & Party–Again

In a decision that could get more excited attention that in deserves, SCOTUS, by the usual 5-4 margin, has sided (at least temporarily) with civil rights groups arguing that the usual “bleaching” and “packing” strategems used by the Alabama legislature in their last decennial redistricting may have in some particulars represented an unconstitutional “racial gerrymander.” Justice Kennedy voted with the Court’s four more liberal members in ordering a remand of the case to a lower court with instructions to use a different (district-by-district) test for racial gerrymandering. But the case is probably too convoluted to provide much precedent, and the defendant may just need to show its decisions are strictly partisan, not racial, to survive further scrutiny.

Election law specialist Rick Hasen offers this take at SCOTUSblog:

What is the significance of today’s Alabama ruling? It seems likely on remand that at least some of Alabama’s districts will be found to be racial gerrymanders. This means that some of these districts will have to be redrawn to “unpack” some minority voters from these districts. But do not be surprised if Alabama preempts the lawsuit by drawing new districts which are less racially conscious but still constitute a partisan gerrymander which helps the Republicans have greater control over the AStilabama legislative districts. As I have noted, lurking in the background of this case is the “race or party” problem: with most Democrats in Alabama being African Americans and most Republicans being white, how does one determine whether a predominant factor in gerrymandering is race or party?

Still, the decision does matter insofar as it further chips away at the long-standing Republican rationale for “bleaching” and “packing” as necessary to comply with the Voting Rights Act itself on grounds that the only test for minority voting power is how high a percentage African-American incumbents can run up. And it’s an example of the twilight struggle via individual case litigation on which voting rights may depend now that this same Court has largely removed the Justice Department’s involvement via the power to review suspicious schemes before they are implemented.

Ed Kilgore

Ed Kilgore, a Monthly contributing editor, is a columnist for the Daily Intelligencer, New York magazine’s politics blog, and the managing editor for the Democratic Strategist.