MOBILE, Alabama — The only way for federal courts to stop making a mess of political redistricting is for them to stop assessing district maps through racial lenses.
A federal three-judge panel in Alabama on Monday ordered that the state’s new congressional district lines be reengineered within two weeks to create a second black-majority district, or “something quite close to it.” Never mind that for 30 years the state has had a stable percentage of black voters (roughly 25%-27%) and that courts approved markedly similar district maps, maps in which six of the seven districts had white majority populations, for that entire time.
In sum, the judges are saying that what was acceptable under the Constitution and the federal Voting Rights Act for 30 years is no longer acceptable now, even though neither the Constitution nor the act’s redistricting provisions, nor the population’s racial percentages, have changed. Apparently, laws, just like words for Humpty Dumpty in Wonderland, mean for some judges “just what I choose [them] to mean,” changing like the patterns of a kaleidoscope.
Then again, the Supreme Court itself has created a horribly thorny legal and logical thicket around redistricting. In the 1993 case of Shaw v. Reno and the 1995 case of Miller v. Johnson, it ruled that any district drawn predominantly on the basis of race violates the Equal Protection Clause of the 14th Amendment and that the Voting Rights Act does not necessarily require the creation of a “majority-minority district” where one has not previously existed. The latter understanding was confirmed in Cooper v. Harris in 2017. On the other hand, the court has never overturned the 1986 Thornburg v. Gingles decision that said sometimes a minority-majority district must be created.
Even more confusingly, sometimes courts have, and sometimes they haven’t, ruled that states also must not “dilute” black voting percentages in a district, so that, for example, a 60% majority must not be reduced to a 53% majority.
Yet if a legislature is being sued because it didn’t create a second black-majority district, what is it to do? Imagine one district with 45% of black registered voters and a neighboring district with 60%. Well, to turn the 45% into, say, 52%, that would (roughly) require the 60% black district to be reduced to 53% black. If you must make both districts majority black but you cannot “dilute” the 60% district, then what, pray tell, is the answer?
Even though the federal judges in Alabama (and most other judges) miss it, the best answer is to stop obsessing about race as if it is the sole or main determinant of voting. A black entrepreneur in Cincinnati probably has fewer political interests in common with a black steelworker in Middletown, 35 miles away, than he does with a fellow entrepreneur in Cincy who is white.
And despite all the times various courts have used Section Two of the Voting Rights Act to justify endless second-guessing of district lines, the last clause of that section should be the key, especially for the Alabama case in which the court wants to produce a second black-majority district that has never existed before, at the likely sacrifice of other considerations such as geographical proximity and cultural affinities.
The end of Section Two says this: “Nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.”
Granted, when legislatures violate all other principles of redistricting (previously identified by courts as including “contiguity, respect for political subdivisions like counties, cities, and towns, or the compactness of districts”) in order to create bizarrely shaped districts with obvious racial anomalies, especially to the clear detriment of black voters, courts should step in. But otherwise, it’s time for judges to stop trying to figure out how many racists are dancing on the head of a pin or to try deciding what skin color a community’s “candidate of choice” is.
Here in Mobile, voters for five straight elections have chosen a mayor of a race other than the city’s majority, twice electing a black Democrat when the city was majority white, and then three times electing a white Republican after the city became majority black.
In short, an individual’s race does not necessarily determine his political opinions. Courts should stop making the racialist assumption to the contrary.
