On February 7, the U.S. Supreme Court decided to hear two cases challenging the Alabama redistricting map under the Voting Rights Act, and halted a lower court’s preliminary ruling last month to draw two majority-minority districts in a short period of time. National news reporting about the cases, Merrill v. Milligan and Merrill v. Caster, was predictably hyperbolic. Reuters reported that the action “signals [a] new threat to voting rights law.” Bloomberg called the Supreme Court order a “Blow to Black Voting Power.”
The lower court actually did not make a final decision on the map. After a one-week preliminary hearing, it ordered a new map be drawn, and did so when the election cycle had already begun.
The Supreme Court halted the creation of a new map and will determine whether the Voting Rights Act has or has not been violated. Hardly a threat to the Voting Rights Act itself!
Here are three things you probably haven’t heard in the reporting on this case:
1. In some cases, splitting up a majority-minority district into two majority-minority districts dilutes the minority vote.
In this case, the legislature’s map retains the one majority-black district in Alabama that has had a black representative for the past two decades. It is unclear whether drawing two majority-black districts will mean more or less black representation when election day comes along.
Ron Faucheux, a nonpartisan political analyst, explains the nuts and bolts:
“One of the issues that isn’t being talked about is that when you create two black districts, the percentage of black voters in each of those districts start[s] going down to be able to build two districts. And if they go down too far, even though they might be a majority-minority district, in certain elections, it doesn’t necessarily mean an African American will win the seat.”
In 2019, a three-judge court ordered the Virginia House of Delegates districts to be redrawn to comply with litigation over the Voting Rights Act. The percentage of black voters in two majority-minority districts was reduced by a few percentage points but still was the majority of the districts. However, in the next election under the map, the two black incumbents in those districts ended up losing to white challengers, and reduced the Legislative Black Caucus representation.
2. In some cases, court-ordered maps have themselves been found to violate the Voting Rights Act years after initial drawing.
Look at Texas: In February 2012, after rejecting the map drawn by the state legislature, a federal three-judge court drew a new Texas redistricting map for the rapidly approaching May primary. But after years of litigation, in 2017 the same court reconsidered the map and came to a different decision, rejecting the very lines the court itself drew five years prior as racially discriminatory.
3. The Republican-led apportionment committee in Alabama rejected a legislative proposal to destroy the one majority-minority district.
Just this cycle, the Alabama legislative leadership took actions to protect the existing majority-minority district. Local Montgomery news reported the Republican-led Alabama apportionment committee rejected a proposed map by Sen. Smitherman (D-Birmingham) on the grounds that it would fragment the black vote into two separate districts and dilute the black vote in the 7th district (from 55% to 42%). In response, the head of the apportionment committee Sen. Jim McClendon (R-Springville) explained, “You eliminate a majority-minority district; that violates the Voting Rights Act.” The Republican-led apportionment committee then voted against Smitherman’s proposal.
The Alabama redistricting map deserves detailed review. And the confusing and complicated redistricting case law out of the U.S. Supreme Court over the past five decades needs clarification. Instead of changing state law and deadlines through the emergency docket — as the lower court did — the U.S. Supreme Court is taking the time to thoroughly evaluate the case. That will ensure everyone gets a fair hearing and a fair vote.