MONTGOMERY, Ala. (CN) — Federal judges ordered Alabama to redraw 12 of its 36 legislative districts because they were racially gerrymandered by the state’s Republican Legislature.
The three-judge panel left it up to the Legislature to redraw the districts before the 2018 primary and general elections. The 12 unconstitutional districts were drawn by the Legislature in 2012 and used in the 2014 elections.
All 12 districts declared unconstitutional are represented by Democrats, 10 of them black.
The Alabama Legislative Black Caucus has been fighting the racial gerrymandering since 2012, claiming it minimizes black voting power by concentrating African Americans in a few districts.
“By packing the majority black House and Senate districts, the plans remove reliable Democratic voters from adjacent majority-white districts,” the caucus said in its original complaint and in the amended complaint of Jan. 15, 2013.
The U.S. District Court ruled for the state that year, but the U.S. Supreme Court vacated and reversed in March 2015, in a 5-4 opinion. Justice Steven wrote that that the lower court should have analyzed the racial gerrymandering claim on a district-to-district basis. Breyer was joined by Justices Anthony Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.
The late Justice Antonin Scalia wrote a dissent, which was joined by the other conservative justices. Justice Clarence Thomas wrote a dissent of his own, calling the plaintiffs’ arguments a demand for “the ‘best’ racial quota.”
Alabama Legislative Black Caucus and other plaintiffs, including the Alabama Democratic Conference, disputed all 36 districts, but the three-judge panel ruled on Jan. 20 that only 12 of the districts are unconstitutional.
Nonetheless, Alabama Democratic Conference Chairman Joe Reed called it a “decisive” win.
“It’s not a partial victory,” Reed told AL.com, a Birmingham news site, “it’s a 100 percent victory.”
Not surprisingly, Attorney General Luther Strange had another view of it. “While we are still reviewing the 627-page ruling, we are pleased that the court upheld the constitutionality of two-thirds of the state legislative districts under challenge,” Strange told AL.com. “We will determine the next steps in consultation with the legislative leadership and the governor."
All 140 seats in the Alabama Legislature are up for grabs next year.
James Blacksher, an attorney with the co-plaintiff Alabama Association of Black County Officials, said the ruling will affect more than the 12 districts.
“They've got to go about the whole redistricting process in a different way,” Blacksher said.
Gov. Robert Bentley’s communications director Yasamie August said Bentley has been briefed on the ruling and is “certain” the Legislature will address the issue properly.
One judge on the panel, U.S. District Judge Myron Thompson, dissented in part, from the majority opinion by 11th Circuit Judge Bill Pryor and Chief U.S. District Judge Keith Watkins.
Thompson agreed that the 12 districts were unconstitutional and thought 12 others were unconstitutional as well.
Pryor wrote that the Legislature “faced a difficult task” when it redistricted Alabama map in 2012.
“The Legislature had to draw districts of roughly equal population that were conscious enough of race to comply with the Voting Rights Act, but not so conscious of race that they violated the Fourteenth Amendment,” Pryor wrote. “And to further complicate matters, most of the existing majority-black districts were under-populated by at least 5 percent.”
The plaintiffs had to prove that race was the predominant consideration in the state’s decision to place a significant number of voters in a particular district.
The panel determined that race predominated in 14 of the 36 districts, but that the state had a compelling justification for two districts, Senate District 23 and House District 68, which overlap.
Pryor wrote that the Legislature relied on the testimony of District 23 Sen. Henry Sanders, a member of the Black Caucus, to draw these districts.
At a public hearing in Selma before the map was drawn, Sanders told Sen. Gerald Dial, co-chair of the legislative committee that wrote the map, that none of the majority-black districts should be less than 62 percent black.
“Sometimes a lot of people don’t vote,” Sanders said at the hearing. “Sometimes a lot of people can’t vote. They might be in prisons or other kinds of institutions. Sometimes a lot of folks are discouraged for one reason or another. So I would hope that 62 percent is a minimal for the majority African-American districts.”
Dial testified that if he had told the black leadership in the state Senate that majority-black districts could have no more than 55 percent black population, and that this lower number was better for their communities, “Senator Sanders and my other good friends in the Senate … would simply have glazed over and asked me when I was going to the mental institute.”
The panel ordered a status conference for Feb. 14.
“It is this court’s expectation that the state Legislature will adopt a remedy in a timely and effective manner, correcting the constitutional deficiencies in its plans in sufficient time for conducting the 2018 primary and general elections, without the need for court intervention,” Pryor wrote in the order.
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