Alabama Legislative Black Caucus v. Alabama

March 31, 2015

In Alabama Legislative Black Caucus v. Alabama, decided a week ago on March 25, 2015, the Supreme Court reversed and sent back the lower court decision. The federal district court had thrown out a challenge to Alabama’s 2012 redistricting. That court held that the redistricting was not a racial gerrymander. The Supreme Court said the lower court used the wrong standard.

It’s important to understand what a decision like that does. The Supreme Court did not decide whether the redistricting violated the Constitution or not. It did not decide whether Alabama or the Black Caucus should win. It sent the case back to Alabama with instructions on how to figure out who should win.

The redistricting was accomplished by Alabama statute signed May 31, 2012, before the 2012 election. Plaintiffs filed a lawsuit later that year. The Court held a trial in mid-2013 and reached a decision throwing out the challenges in December of 2013. In 2014 the Supreme Court decided to hear the case. That Court now sends it back for more legal work.

This case was unusual for how quickly the case resulted in an opinion of the U.S. Supreme Court. Even so, after three years of legal proceedings the case is hardly over and could still take years before a resolution.

At the beginning of the proceedings, before any decision in the case, Alabama sought pre-clearance from Attorney General Eric Holder, under the portion of the Voting Rights Act which required Alabama to get the approval of the U.S. Attorney General for the electoral changes. That was called preclearance. In this case Attorney General Holder decided not to object to the districting. Only after Holder pre-cleared the statute did the judicial process get moving. But, while the case was in the lower court, the U.S. Supreme Court decided the pre-clearance provision of the Voting Rights Act was unconstitutional.[1]

Regardless of whether Alabama and Holder or the challengers had the better argument in this case, Holder pre-cleared the districting quickly but it took approximately three years for the courts to reach an inconclusive decision along the way toward ultimately deciding whether the districting is OK. The difference of course is several state and national elections. So, although it didn’t matter in this case, the time difference illustrates that one important result of the U.S. Supreme Court decision in 2013 that the pre-clearance provisions are unconstitutional, is that challengers may have to wait much longer for justice.

Secondly, this 2015 decision was written by Justice Breyer. He wrote for five members of the Court, joined by Justices Kennedy, Ginsburg, Sotomayor and Kagan. Committees often make poor writers. In this case, although Kennedy merely signed Breyer’s opinion, Breyer had to write an opinion to satisfy Justice Kennedy and consistent with Kennedy’s prior opinions. The result is a legal analysis that is hard to pin down and could be used creatively by either the majority or the dissenters in future cases. In that respect, Justice Scalia’s criticism is surely right – this decision won’t stand up.

That doesn’t mean Justice Scalia is right on the merits. It does mean the Justices have not understood the concept of gerrymandering, have not taken seriously enough the work of political scientists to analyze gerrymandering and put the concept on a much stronger, and precise foundation.[2] Law without science is often hollow.

— This commentary was broadcast on WAMC Northeast Report, March 31, 2015.

[1] Shelby County v. Holder, 570 U. S. ___ (2013).

[2] See Brief Of Amici Curiae Professors Gary King, et al, 2006 U.S. S. Ct. Briefs LEXIS 30, in League of United Latin Am. Citizens v. Perry, 548 U.S. 399 (2006). See also Stephen E. Gottlieb, In ‘Vieth,’ Court Continues to Misunderstand Gerrymandering, N. Y. Law Journal, August 19, 2004, at 4.


The Anti-Union Court

July 1, 2014

The Court decided yesterday in Harris v. Quinn that at least some of the employees who work under a collective bargaining agreement don’t have to share in the costs of negotiating that agreement. The Court says it violated their First Amendment rights. How many unions and employees it will apply to is still unclear but this is not the first move the Roberts Court has made in that direction.[i] Sometimes the patterns matter much more than the individual decisions, whether good or bad. Read the rest of this entry »


Intransigence – the Auto-immune Disease of Democracy

July 9, 2013

Obviously I’ve been following the news from Egypt like everyone else. You don’t need commentators to tell you that ousting a democratically elected government is undemocratic and unacceptable. But I want to talk about Morsi’s mistakes because they illustrate a major misunderstanding of democracy.  Read the rest of this entry »


A 28th Amendment

April 30, 2013

I got into a discussion about a proposed 28th Amendment to our Constitution a few days ago. Turns out there’s more than one proposal calling itself the 28th Amendment. I’m talking about the one that begins, “The rights protected by the Constitution of the United States are the rights of natural persons only.” There may be similar ones. There certainly are some calling themselves the 28th Amendment that address very different subjects and are totally misinformed. But the restriction of constitutional rights to natural persons is worth talking about. Read the rest of this entry »


Real Election Fraud

August 21, 2012

Republican efforts to exclude voters from the polls have been in the news lately. A Pennsylvania judge recently decided it was OK to require voters to have photo IDs there. Many states have been doing that.

Indiana anti-voter fraud efforts got the blessing of the U.S. Supreme Court under John Roberts in 2008.[*] Indiana Republicans claimed to be terrified that poor people would show up at the polls fraudulently trying to vote, and worse, they would vote for Democrats. So they required picture IDs. Their claims have been repeated in many states.  Read the rest of this entry »


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