It is easy to read the Supreme Courts five-to-four decision in Alabama Legislative Black Caucus v. Alabama and Alabama Democratic Conference v. Alabama as a mostly inconsequential case giving a small, and perhaps only temporary, victory for minority voters in a dispute over the redrawing of Alabamas legislative districts after the 2010 census. Indeed, although the Supreme Court sent this racial gerrymandering case back for a wide and broad rehearing before a three-judge court, Alabama will be free to junk its plan and start over with one that may achieve the same political ends and keep it out of legal trouble. But Justice Antonin Scalia in his dissent sees the majority as issuing a sweeping holding that will have profound implications for the constitutional ideal of one person, one vote, for the future of the Voting Rights Act of 1965, and for the primacy of the State in managing its own elections. Time will tell if Justice Scalias warning against the implications of what he termed a fantastical majority opinion is more than typical Scalian hyperbole. And we may know soon enough as these issues get addressed in racial gerrymandering cases from Virginia, North Carolina and elsewhere.
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In the Supreme Court, Justice Anthony Kennedy sided with the more liberal Justices, over the objections of the four more conservative Justices, to rule against Alabama and send the case back for a do-over. Much of the dispute between the majority and the dissent concerned issues likely to be unimportant in other voting cases: whether one of the sets of plaintiffs had standing and whether a key argument of the parties was preserved on appeal. Justice Breyers majority opinion even included an appendix to show where an argument was raised in the court below.
The majority said that the lower court erred in considering whether Alabamas legislative redistricting plan as a whole was an unconstitutional racial gerrymander. The majority sent the case back to a lower court to consider the issue on a district-by-district basis. It said that the lower court could consider new evidence as well as other claims which the Supreme Court did not reach, such as the one person, one vote challenge.
But the Supreme Court majority did more than simply send the case back for a new hearing. It very strongly suggested that at least some of the districts were unconstitutional gerrymanders. It began by taking away two of the states strongest arguments.
First, the Court said Alabama was wrong to the extent it believed that Section 5 of the Voting Rights Act required Alabama to pack more African-American voters into districts in order to keep the same percentage of African Americans in each majority-minority district. This was a misreading of what Section 5 required and such a reading could actually hurt minority voters.
Second, the Court said that Alabama could not point to its desire to have more equally populated districts as its real predominant factor in redistricting. In other words, the majority rejected the argument that the state could not engage in racial gerrymandering if its first order of the day was to maintain equally populated districts. The majority took compliance with one person, one vote out of the equation, saying this was something that was a background rule to be considered before determining whether race is a predominant factor. It calls into mind Daniel Lowensteins critique of the predominant factor test from Shaw v. Reno as nonsensical when it comes to how legislatures decide how to redistrict.
In the end, the majority all but instructed the lower court to find that at least some of the districts were unconstitutional racial gerrymanders:
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Justice Scalia, who wrote the principal dissent, argued mostly on the question of standing and on whether the district-by-district issue was preserved on appeal. He believed that the case was not properly litigated or the issues preserved: This disposition is based, it seems, on the implicit premise that plaintiffs only plead legally correct theories. That is a silly premise. We should not reward the practice of litigation by obfuscation, especially when we are dealing with a well-established legal claim that numerous plaintiffs have successfully brought in the past. Despite his opening hyperbolic statement, Justice Scalia offered very little to explain what parade of horribles would result from the interpretation of the racial gerrymandering claim in this way. Justice Thomas, while joining (along with the Chief Justice and Justice Alito) in Justice Scalias dissent, dissented separately as well, to express his disagreement more broadly with Voting Rights Act jurisprudence and the permissible consideration of race in redistricting.
