Wednesday, November 19, 2014

The Critical Federalism Issue at the Heart of the Alabama Redistricting Cases

By Professor Justin Levitt

This post originally appeared on the Election Law Blog.

Justin here, with a thought on last week’s oral argument in two consolidated cases about Alabama’s redistricting process. There’s an issue lurking at the heart of the dispute that may be difficult to spot in the transcript.

The cases concern the rationale behind Alabama’s last state legislative redistricting plan. Press headlines pitched the issue as a tussle between racial reasons and political ones. Such cases can indeed be quite messy … but for better or worse, this dispute is not one of them. Alabama said that its districts were driven by the Voting Rights Act, and not by partisan politics. And by the end of the argument, most of the Court seemed to understand that any deeper partisan impulse was achieved through race-based means. (Look at LULAC — or Judge Kozinski’s Garza opinion — for an explanation of why using race to achieve partisan ends is still race-based action.)

At least some Justices also seemed to understand that Alabama’s districts were not actually driven by the Voting Rights Act. As I’ve written, Alabama instead deployed a poor essentialist facsimile. The Voting Rights Act is a nuanced statute that requires attention to race only after careful consideration of on-the-ground political reality. Alabama cut corners, pegging its districts to raw demographic targets without the necessary homework. Whatever Alabama was following wasn’t the statute on the books.
Which leads to the intriguing buried issue. Why manufacture a false façade for a federal law? Perhaps it was honest mistake about what the statute requires. Perhaps it was an attempt to overpack many African-American voters into a few hyperconcentrated districts, or to change the representative face of the Democratic party in Alabama. Or perhaps the ostensible federal mandate offered the prospect of a convenient path around an inconvenient state structure.
Alabama’s state constitution, like many others, builds state legislative districts out of whole counties. This has an important tie to local governance in much of the south, where county policy is effectively set by the state legislative delegation from each county. The rules for Autauga County are driven by the state legislators from Autauga; Winston County’s state legislators make law for Winston.

In a system like this, when state legislative districts follow county lines, those with the county’s interests set county rules. But any district claiming a portion of a county becomes part of the county’s governing delegation. The more times a county is split, the larger the governing delegation. Some of the county splits involve only a few voters in any one county. And when counties are carved up to give several suburban legislators little bits of urban-county fragments, county policy is set by state Senators serving primary constituencies miles away.

Alabama is only able to effectuate this double gerrymander — warping state legislative districts and county governance, in the same stroke — if it can find a way around the county-line requirement. That’s the “federalism” at issue, and it is precisely the inverse of the norm. Alabama’s representatives have sought to distort federal law as cover to override their own state constitution.

There are two ways in which Alabama’s legislature misread the federal law at hand. First, it tightened population constraints well beyond what the federal constitution requires. Then Alabama picked racial demographic targets, falsely claiming the mantle of the Voting Rights Act.

There are indeed times — many times — when these federal mandates will override state standards. But the fake versions that Alabama applied do far more damage to the state constitutional commands than would a legitimate application of federal law (which, not coincidentally, would be more responsive both to longstanding state interests and facts on the ground). In doing so, the legislature turned a few federal adjustments to a state’s legal regime into an excuse to ignore state law altogether.

The use of fake federal authority and an ostensible racial imperative to seize county control was part of these cases from the beginning: the loss of policymaking authority for their constituents at home is an injury that the countries’ true representatives feel keenly. It is also an awkward legal claim on its own, and not directly before the Supreme Court. But it is a powerful and underrecognized illustration of the practical political consequences of Alabama’s misrepresentation of federal law. And it is therefore perhaps an explanation for that misreading as well. Indeed, it may be the issue at the heart of the case.

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