The Racial Redistricting of Alabama

After the 2020 census, the state was apportioned seven congressional seats, the same number it has received after every census since 1970. Last year the Legislature, with a Republican majority, approved a map with six white-majority districts and one black-majority district. This was similar to maps approved after the 2000 and 2010 censuses.

The plaintiffs claim there are enough black voters in Alabama to justify a map with two black-majority districts—and, further, that such a map is required under the VRA. Blacks make up 27% of the state’s population, and therefore they should have two of the seven seats. The plaintiffs submitted a map that moved some black voters from their safe majority-minority district to a new district with a majority of black voters. They claim that the state’s map dilutes black votes by packing too many of them into one safe district.

Alabama argues that the plaintiffs drew their map using a racial outcome as the main goal, a practice the Supreme Court has discouraged in previous cases. The plaintiffs’ proposed new district runs from one side of the state to the other, fractures local communities, and cherry-picks voting precincts with black majorities to ensure the election of a black representative.

A panel of federal judges accepted the plaintiffs’ argument with an order to add a second congressional district with a black majority. The Supreme Court stayed that decision pending its consideration of the case. In November Alabama voters will elect representatives according to the Legislature’s map.

Congress passed the Voting Rights Act to protect minority voters by banning literacy tests, overly cumbersome registration requirements and the like. By 1980 black voter participation across the South matched white participation.

But the Supreme Court soon expanded the act’s reach to cover election rules and the drawing of districts. As Chief Justice

Earl Warren

wrote in Allen v. State Board of Elections (1969), “the right to vote can be affected by a dilution of voting power, as well as by an absolute prohibition on casting a ballot.” Subsequent court decisions, interpretations by the Justice Department, and congressional amendments have solidified the view that the VRA bans district maps that deny minority voters an equal opportunity to elect candidates of their choice.

As a result, the Supreme Court has wrestled for decades with redistricting issues. In Gingles v. Thornburg (1986), the court advanced a vague multi-step test to demonstrate dilution of minority votes: A minority group must show that it is sufficiently large and compact to form a majority in a single-member district, and it must show that blacks and whites vote cohesively in opposite directions. These claims, if met, would entitle the group to one or more minority-majority districts.

The court refined the tests in later cases, holding that states can’t use race as a predominant factor in drawing district lines and shouldn’t allocate districts to minority groups according to their proportions in the population. The court has also struck down extreme racial gerrymanders.

Despite those rulings, the Gingles standards remain ambiguous: Legislators may consider race to satisfy the VRA but not too much. Chief Justice

John Roberts,

in dissenting from the order to stay the lower court’s decision in Merrill, acknowledged that “Gingles and its progeny have engendered considerable disagreement and uncertainty regarding the nature and contours of a vote dilution claim” under the VRA. His liberal colleagues disagreed. Justice

Elena Kagan,

in a dissent joined by Justices

Sonia Sotomayor

and

Stephen Breyer,

wrote that the Alabama map represents a clear case of vote dilution under the Gingles tests. She and her colleagues would keep those tests in place and rule in favor of the plaintiffs.

But it appears likely that the court is ready to revisit these tests. Justices

Clarence Thomas

and

Neil Gorsuch

have argued that Section 2 of the VRA refers only to barriers to voting and doesn’t extend to redistricting or claims of vote dilution. That approach, if accepted by a majority, would foreclose most such litigation. It would also be consistent with the language of Section 2, which bans state-enforced barriers to voting on account of race.

The court has also recognized that it is difficult to separate racial and partisan gerrymandering when blacks vote overwhelmingly for Democrats and whites heavily for Republicans. That means that the Alabama Legislature, in drawing its map, might have considered party more than race. Republicans were satisfied to go along, because in drawing a safe Democratic seat they were preserving six safe seats of their own. But Democrats upset that calculus by laying claim to a second minority seat.

Viewed this way, the controversy looks less like a battle over minority voting rights and more like a typical partisan dustup over district lines. The VRA was intended as a shield to protect minority voting rights, but it has evolved into a sword to advance the interests of the established political parties.

The Merrill case gives the court an opportunity to abandon precedents that have inflamed racial conflict under the VRA while restoring the act to its original purpose of protecting minority voting rights. In the process, the court could play a part in redirecting the country to a path where the colorblind ideals of the civil-rights revolution are honored in practice, not only in partisan rhetoric.

Mr. Piereson is a senior fellow at the Manhattan Institute.