Today, the Supreme Court heard oral argument in Alabama Legislative Black Caucus v. Alabama and Alabama Democratic Conference v. Alabama. (The SCOTUSBlog page is here.)
There are many moving parts in this litigation. (Rick Hasen has a nice summary here.) Redistricting involves a number of decisions that legislators must make, and they are constrained by a variety of provisions of the Constitution, federal law, and state law. Very, very briefly: there must be an equal--or, at least, roughly equal--number of individuals residing in each district. The districts cannot be drawn with the primary intent to draw them among racial lines. They must, however, consider the impact that drawing the lines will have on racial groups if there is polarized voting. The drawing of lines could not, when Section 5 was in effect, be retrogressive on minority groups. And while partisanship is a permissible basis for redistricting, there may be circumstances in which a judiciary would find invalid redistricting for being excessively partisan.
Some of these are slightly vague standards; other are in tension with each other. It's not like these are new--this blog is dedicated, in part, to Elbridge Gerry, and "Gerry's salamander" (i.e., gerrymander) is the graphic at the top of the page.
I had the privilege of attending my first Supreme Court oral argument this morning. Here's what I observed. (Quotations are not direct; they are based on my scrawled notes!)
Bottom line: there seemed to be more sympathy for Alabama's position over that of the petitioners, but the Court was quite scattered at oral argument, and the opinion could be quite narrow.
Chief Justice Roberts opened asking petitioners about the "sweet spot," whether a state could really be expected to navigate having too many minorities in a legislative district and having too few. Justice Scalia chimed in to assert that the "only way to be sure" that Alabama was complying with Section 5 of the Voting Rights Act was to ensure that each legislative district had the same number of minorities under the old and new systems.
Justice Kennedy then tried to wrap his mind around redistricting for partisan gerrymandering reasons, but using race as a proxy for party. He found it hard to conclude that one party could do it, but the other could not because the effect would be a racial gerrymandering claim--a "one-way ratchet" concern. (Justice Breyer would later challenge this conclusion and assert it was actually a two-way ratchet."
In one (gotcha?) moment, Justice Alito asked, "You're just as interested in quotas as Alabama, only lower quotas." To which counsel replied, "I meant to use 'targets'" instead of "quotas."
Justice Ginsburg then wondered about the nature of this claim as a statewide claim instead of a district-by-district claim. This issue was picked up by Justice Alito in further questioning of petitioners' counsel, wondering whether the complaint adequately alleged it or whether the district court misunderstood the claim. Instead, petitioners pressed back, the effect is the same--challenging all 36 districts or challenging each of the 36 districts.
Chief Justice Roberts returning to this concern of the state navigating too few minorities in a district and too many--"If Alabama had reduced the numbers in any significant way, the Attorney General would come in like a ton of bricks."
Justice Sotomayor expressed a more basic problem--the injury. She was worried that the Shaw injury alleged by petitioners was an "ephemeral injury"--"Explain to me why you don't have to be harmed by a specific application of this policy." She would later confess that she was "still having a psychological problem" about whether petitioners had been injured at all. (She never asked a question to Alabama's counsel during argument.)
Justice Breyer expressed pragmatic concerns about remanding the case--would it be incumbent on the petitioners to point to specific districts where the motivation was rational? And then it would be left to Alabama to articulate a reasonable attempt--or a good-faith reasonable attempt--to comply with Section 5?
Solicitor General Verrilli then went on to make the claim that Shaw demanded district-by-district examination. Justice Kagan pushed back--the policy in place was to avoid retrogression, defined in a particular way, and that definition was applied to every single district. Instead, General Verilli countered, the only way the criteria would rise to a Shaw claim is if the district were drawn in derogation of a traditional policy, and that that had not been shown in every district. The policy itself, he said, was not enough.
Justice Alito returned to the question about whether the district court properly understood the claims, to which General Verrilli conceded the issue was "murky." And Chief Justice Roberts pressed the concern that, if remanded and redistricting occurred, Section 5 would no longer control and the Department of Justice would not have a part in the process.
When Alabama's counsel took to the lectern, counsel claimed that the goal was to "preserve the status quo." Chief Justice Roberts answered that the problem is that perhaps the status quo is not the right standard.
Justice Kagan came out with a full-throated defense of petitioners' claims. "You were determined, come what may," to keep the same percentage of minorities in each district? That it was "just a coincidence" that the same number of minorities were in each district?
She noted that this is perhaps a sui generis Shaw claim. Usually, she explained, Shaw claims are circumstantial. But here, we have a policy statement, from the state, that nonretrogression is the second-most important goal (behind Reynolds), and then a clear statement that nonretrogression demanded the same percentage of minority voters in each district. Alabama responded that it was a plausible way of interpreting Justice Souter's opinion in Georgia v. Ashcroft and a basis for Congress's amendments to the Voting Rights Act in 2006.
Justice Kennedy was concerned that the state did not say it was gerrymandering--it said it was trying to comply with Section 5. (In his eyes, the partisan reasons, I think, should have been more obvious.)
Justice Breyer questioned the practicalities of remanding the case--how would Alabama justify its system after Section 5 is out the window?
Finally, Justice Kagan even pressed the state's interest in complying with one person, one vote with a 2% deviation standard in population--she noted that as the Court has upheld deviations of up to 10%, perhaps 2% is not really a state interest.
During rebuttal, Justice Sotomayor again pressed the evidentiary point, asking whether the injury had been adequately established below.
My gut reaction, then, might not comport at all with reality--this case went in so many directions, it's hard to identify how the Court might proceed.