The Supreme Court seemed divided Wednesday over and perhaps even stumped by a request that Alabama redo its state legislative redistricting plan that challengers said was drawn with too much emphasis on the race of voters.
The challenge was brought by black officeholders and Democrats who argued that the state’s Republican leadership packed minority voters into districts that allowed the election of African American officials but reduced their influence elsewhere.
The court’s jurisprudence on when race can be used in drawing legislative districts, however, is complex and at times contradictory. And 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.
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.
And Chief Justice John G. Roberts Jr. said 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.
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 it says its plan also 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. A federal judicial panel ruled 2 to 1 to approve the plan.
But the court’s liberals indicated they think that the state relied too heavily on race in drawing the districts, which would cause constitutional problems.
Justice Elena Kagan 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.
The question could come down to whether Alabama had partisan gerrymandering goals in mind — the court has allowed that — rather than racial gerrymandering. And that is complicated when, as in Alabama, racial and political identities are closely linked.
The question of whether Alabama Republicans were passing a plan only to protect their own — as ruling Democrats had done 10 years earlier — was most important to Justice Anthony M. Kennedy.
Even if the court sends the redistricting plan back, it was unclear what would change. Brasher said redistricting plans favored by the black challengers were similar to the ones the state legislature passed.
The combined cases are Alabama Legislative Black Caucus v. Alabama and Alabama Democratic Conference v. Alabama.