By Brandon Moseley
Alabama Political Reporter
Alabama Attorney General Luther Strange (R), State Senator Jim McClendon (R from Springville), State Senator Gerald Dial (R from Lineville) and others were at the U.S. Supreme Court on Wednesday to defend the State of Alabama’s redistricting plan from two lawsuits challenging the plan by the Alabama Black Legislative Caucus and former State Representative Joe Reed’s group: the Alabama Democratic Conference.
Alabama State Senator Quinton Ross (D from Montgomery) and State Representatives John Knight (D from Montgomery) and Christopher John England (D from Tuscaloosa) were also at the Supreme Court on Wednesday, but they were with the plaintiffs.
The justices of the U.S. Supreme Court are considering the combined cases of Alabama Legislative Black Caucus v. Alabama and Alabama Democratic Conference v. Alabama. Alabama’s state legislative redistricting plan is being challenged for allegedly packing too many black voters and Democrat voters in majority-black districts. This plan was already upheld by the Federal 11th Circuit Court of Appeals by a two-to-one vote. The appeals court rejected the claim that the plan violated the 1st and 14th Amendments of the U.S. Constitution and the Voting Rights Act. Judge William H. Pryor (formerly Alabama’s Republican Attorney General) wrote that “the overwhelming evidence in the record suggests that black voters will have an equal opportunity to participate in the political process the same as everyone else.”
The Civil Rights Act of 1965 required that Alabama and other Southern States submit any legislative redistricting to the U.S. Justice Department for preclearance so that the State can not use redistricting to disenfranchise minority voters. While that section of the Civil Rights Act has been rejected by the U.S. Supreme Court as antiquated, that ruling occurred after the DOJ’s Civil Rights Division approved Alabama’s redistricting plan. Holder’s DOJ saw no problem with the plan.
The State is redistricted and reapportioned every ten years based on the census.
Following the 2000 census the Alabama Democratic Party controlled both Houses of the legislature and they gerrymandered the State to protect Democratic incumbents. In the Republican landslide election of 2010, the Republican Party was given super majorities in both Houses of the Legislature by the voters of Alabama. Republicans got to control the redistricting.
Representative Jim McClendon (R from Springville) and Senator Gerald Dial (R from Lineville) were the Chairs of the Joint Committee on Redistricting. Rep. McClendon told the Alabama Political Reporter in December following the Appeals Court victory, “Sen. Dial & I along with the 22 member Committee and the Speaker and Pro Tem proposed a plan that got DOJ preclearance in record time, withstood Federal judicial review, and created fair districts that accurately reflect the will of the voters in Alabama. I am proud to have had a roll in the process and am pleased both candidates and voters have this matter settled in ample time for the 2014 election.”
McClendon was elected to the State Senate on Tuesday, November 4.
According to original reporting by the Washington Post’s Robert Barnes, more than one justice pointed out during oral arguments that minority voters used to come to the court to demand that legislatures specifically use race in order to ensure that blacks and Hispanics be represented in government, which is now what the Black lawmakers are objecting to in the Alabama redistricting.
Barnes reported that Justice Antonin Scalia told Richard Pildes, an attorney representing the Alabama Democratic Caucus, that he was making the same argument “the other side used to be making” when the demand then was for districts that could be won by minorities.
Chief Justice John G. Roberts Jr. said that states faced conflicting demands from Congress to make sure that minorities were represented and from constitutional protections against government treating people differently because of race. Roberts said he sympathized with states trying to find the “sweet spot” between too much consideration of race and too little.
The State of Alabama contends that its redistricting plans were guided by a goal of making districts as similar to each other in size as possible to comply with commands of “one person, one vote,” and that the plan complies with demands of the Voting Rights Act that states create majority-minority districts when possible to allow minorities to elect representatives of their choice.
Alabama Solicitor General Andrew L. Brasher noted that about 25 percent of the state’s population is black, as is the percentage of blacks in the Alabama legislature.
The Washington Post is reporting that Justice Elena Kagan however said the state was under the “mistaken understanding” that it had to keep the percentages in the majority-minority districts unchanged. She said it was clear that the state was looking only at race when it split voting precincts in drawing the new districts.
Legal experts with the Project 21 black leadership network defended the state of Alabama and its elected legislature against what it called: “partisan and special interest groups.”
Project 21 was included in a legal brief submitted to the Court, that argued legislators were compelled by federal law that was in force at the time to include race in its redistricting plan, but that recent rulings should now compel a stricter scrutiny of how race affects the creation of future legislative districts to the extent that the Court may once again need to reassess elements of the Voting Rights Act.
Project 21 Co-Chair Horace Cooper said in a statement, “I anticipate the Court will make it clear that state legislatures across the land will not be expected to adapt their redistricting lines to meet pre-ordained racial goals…Aiding minority voters in their efforts to elect representatives of their choice must be balanced by the Constitution’s requirement that government should not use race as a tool for policy making unless it is absolutely essential to do so. Race-based districts are a throwback to a bygone era. As is the case with government contracting and college admissions, State legislators should pursue colorblind reapportionment policies whenever possible.”
Project 21’s Patricia Nation said in a statement, “Infringements of State sovereignty through race-conscious federal mandates on legislative redistricting provide no effective protections for the black voter. This intrusion on fundamental liberties and constitutional protections only seems to advance political ideology and partisan efforts to win elections rather than protect minority communities.”
Mr. Cooper added, “In modern politics, complaints about racial barriers to voting seem to have more to do with partisan griping than civil rights. It’s usually about whose ox is getting gored and not about real, legitimate issues involving protected rights.”
In 2013, Project 21 was similarly involved in the landmark Supreme Court case of Shelby County v. Holder that invalidated the “preclearance” formula in the Voting Rights Act.
Project 21 describes itself as a leading voice of black conservatives for over two decades and is sponsored by the National Center for Public Policy Research, a conservative, free-market, non-profit think-tank established in 1982.
After the favorable appeals court ruling AG Strange said, “This was a complex case that required skilled and talented legal counsel, and it has been a top priority for my office. I am proud of the evidence we presented and grateful for the attorneys who helped achieve this successful result.” Strange Deputy Attorney General Jack Park and Assistant Attorneys General Jim Davis and Misty Messick for their work on the case.
A ruling by the Supreme Court is expected some time in 2015.