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Supreme Court considers line between racial and partisan gerrymandering

After the 2010 census, the Republican-led Alabama legislature redrew state legislative districts. But their plan was challenged for being a racial gerrymander and violating voting rights. To examine the case's move to the Supreme Court, Marcia Coyle of The National Law Journal joins Gwen Ifill.

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  • GWEN IFILL:

    We turn now to Supreme Court arguments today on the intersection of race and politics.

    Alabama Democrats are arguing that the state legislature has packed minorities and Democrats into too few districts, in violation of voting rights laws. But that’s open to interpretation, and it fell to the high court to tackle that today.

    And, as always, Marcia Coyle was in the chamber for “The National Law Journal” and for us.

    So tell me about this intersection and how it played out today.

  • MARCIA COYLE, The National Law Journal:

    OK.

    Well, after the 2010 census, the Republican-led Alabama legislature engaged in redrawing state legislative districts, just like other states were doing, following the census. The plan they came up with was challenged by the Alabama Legislative Black Caucus and the Alabama Democratic Conference, who claimed that the plan was what we called a racial gerrymander because it packed into existing majority black districts more majority voters in order to make the surrounding districts more white and more likely to vote Republican.

  • GWEN IFILL:

    Now, when we talk gerrymander, that is generally a very elaborate way of drawing districts for certain purposes. Does it matter more constitutionally or according to the law whether these lines are drawn for racial reasons or for other reasons?

  • MARCIA COYLE:

    It does. It matters a lot. There are two really background principles here to keep in mind.

    First, the Supreme Court in its voting rights decisions has said that race cannot be the predominant factor in redistricting.

  • GWEN IFILL:

    It can be a factor, but not the main factor.

  • MARCIA COYLE:

    Right. It can be a factor, but not the main one. And if it is the main one, it violates the Constitution.

    The Voting Rights Act on the other hand also prohibits states from drawing plans that dilute or impede minority voters’ ability to elect candidates of their choice. And it does that because it is protecting or it’s trying to correct decades of discrimination against minority voters.

    Now, I think the chief justice today during oral arguments sort of summed up the burden that’s on state legislatures here because of those two principles. He said state legislatures have to find a sweet spot between two extremes. They can use some race in order to comply with the Voting Rights Act, but not too much race, or they violate the Constitution.

  • GWEN IFILL:

    It does sound a little complicated.

    But — so, today, as it gets argued in front of the court, how were the arguments made and how were they received?

  • MARCIA COYLE:

    OK.

    The challengers to the Alabama plan said basically all that was considered here by the legislature was race. They relied on racial statistics. They had racial targets. Take a look at these majority black districts. They kept the same percentage and tried to get the same number of minority voters that existed 10 years before.

  • GWEN IFILL:

    They actually would say there are a hundred voters here. We will move them over across the street.

  • MARCIA COYLE:

    Not only hundreds, but thousands. In Senate District 26, for example, they moved 14,506 voters into that Senate district, of which about 35 were white. So they moved huge numbers of people into these districts.

    Some of the justices were skeptical of this argument because they’re struggling with, was this done because of race or was this done to achieve a partisan advantage? The Supreme Court has said that it’s not unconstitutional to draw lines for partisan advantage.

  • GWEN IFILL:

    But how — how do the justices determine intent in this case? What kinds of questions do they ask to get to the bottom of this?

  • MARCIA COYLE:

    They have to examine the numbers. They have to examine the evidence that was put forward in the lower court when this case was tried in order to get at intent.

    But trying to find this line between race and partisan gerrymandering has always been hard. The state of Alabama said this is a status quo plan. We finally — the Republicans finally gain control of the legislature after 130 years. We drafted this plan in order to comply with the Voting Rights Act, and also we wanted to have very few population deviations among the districts.

    Well, Justice Kagan pushed back on that, because she said, that’s not really the only interpretation of the Voting Rights Act. You don’t have to have, as you have here, a district with 76 percent majority black voters when circumstances have changed. But there’s no need for that because those voters could still, if it’s less than 72 percent, still vote for the candidate of their choice.

  • GWEN IFILL:

    Last time this court took up the Voting Rights Act, a lot of advocates considered that they rolled it back, rolled back certain protections.

  • MARCIA COYLE:

    Yes.

  • GWEN IFILL:

    And, certainly, the White House has said the same thing. Would this affect the Voting Rights Act, or is it its own thing?

  • MARCIA COYLE:

    Pretty much its own thing right now.

    There is some sentiment among the justices to send it back to the lower court to see if it would look at each district individually to see what the motive was, instead of the overall plan. But it’s true that when Alabama drafted this plan, it was still under the Voting Rights Section 5, which is now pretty much inoperable.

    So if Alabama had to redo its plan, it might very well do the exact same thing it did without worrying about the Voting Rights Act.

  • GWEN IFILL:

    Oversight.

  • MARCIA COYLE:

    So anybody who is watching it just to see if the court says more or does more to the Voting Rights Act.

  • GWEN IFILL:

    Marcia Coyle, “National Law Journal,” thank you very much.

  • MARCIA COYLE:

    My pleasure, Gwen.

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