Supreme Court endorses race-based districting
Washington Examiner
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Chief Justice John Roberts famously wrote in a 2006 political redistricting case that “it is a sordid business, this divvying us up by race.” In a landmark redistricting decision on June 8, Roberts engaged in exactly this sordid business.
Because of Roberts’s 5-4 decision in Allen v. Milligan, Alabama, race relations, and constitutional law all may fundamentally be harmed.
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Against separate, spirited dissents from Justices Clarence Thomas and Samuel Alito, who were joined in whole or part by Justices Neil Gorsuch and Amy Coney Barrett, the Supreme Court majority invalidated Alabama’s congressional district maps, essentially ordering the state to produce two “black-majority” districts among its seven. Roberts, with the increasingly liberal Brett Kavanaugh and the court’s three Democratic-appointed justices, twisted logic with stunning degrees of sophistry to pretend that their decision does not contradict both statutory and constitutional restrictions against apportioning districts on the basis of racial “proportion in the population.”
For decades, the black percentage of Alabama’s population has remained within a 2-point range, 25.2% to 27.2%. For decades the courts have approved district lines with only one majority-black territory. Now it says what was legal for each of the prior decades is no longer legal, even though no applicable law has changed in the interim. Where’s the logic?
As Thomas noted, Alabama’s population distribution is such that the only way to create a second black-majority congressional district is to abandon race-neutral principles and make race the predominant “precondition” for figuring out where to draw district lines. In contradiction to Roberts’s statement of principle in 2006, Thomas wrote, the new decision improperly and perniciously “puts federal courts in the business of methodically carving the country into racially designated electoral districts.”
In practice, as Thomas opined with devastating effect, the decision will violate both a long-standing principle of redistricting and the specific, tangible, historic existence of a unique community of interest composed of Alabama’s two coastal counties, Mobile and Baldwin. Those counties for many decades have been kept together in one district because, as Thomas wrote, “it is indisputable that the Gulf Coast region is the sort of community of interest that … a congressional district should be built around. It contains Alabama’s only coastline, its fourth largest city, and the Port of Mobile. Its physical geography runs north along the Alabama and Mobile Rivers.”
All 11 maps proposed by the plaintiffs who want to gerrymander the districts to create a second black-majority district can achieve that goal only, for the first time ever, by dividing major, black-majority parts of the county and the city of Mobile from the rest of Mobile and Baldwin counties. In doing so, both ironically and depressingly, the plans would destroy a sense of relative racial comity in the one part of the state where it has blessedly predominated. In the 1960s, Mobile was the only major Alabama city to integrate peacefully. In the past five consecutive mayoral elections, Mobile citizens elected someone not of the race of the voting-age majority — choosing a black Democrat twice while the city was still majority white and then choosing a white Republican three times after population shifts made the city majority black.
In sum, it is not a community where race is the primary determining political factor.
Yet the court’s decision assumes that black people in urban Mobile have fewer interests in common with their white neighbors two blocks away than with rural black people on the Georgia line 200 miles away. This is racial stereotyping at its worst.
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Thomas wrote that the ramifications for constitutional law are dire. The new decision is “yet another installment in the ‘disastrous misadventure’ of this Court’s voting rights jurisprudence,” which Kavanaugh admitted earlier is “notoriously unclear and confusing.” Result? The court over time essentially has ruled that legislatures must take race into account in drawing district lines, except when it must not. How is any legislature to decide between “must” or “must not” apply? They will have to come back to the Supreme Court to see which way its mood is swinging that year. There is no principle.
By abandoning race neutrality, Roberts balkanizes the country into competing racial enclaves. The result could be a race toward disaster.