(CN) - The U.S. Supreme Court heard a challenge to Alabama's legislative redistricting plans on Wednesday that Justice Antonin Scalia characterized as "the argument that the opponents of black plaintiffs used to make" even as Justice Elena Kagan doubted that the racialized map could be a mere "coincidence."
During oral arguments today, the plaintiffs - including the Alabama Legislative Black Caucus - said that Alabama's 2010 redistricting plan dilutes black voters' power.
Alabama insists that it tried to balance the need to reduce population deviation among districts with the desire to help black voters maintain their sway. This led the state to redraw each majority black district to maintain the same percentage of black population as it had under the prior district map, despite demographic changes shown in the 2010 census.
But the plaintiffs claim that Alabama packed supermajorities of black voters into districts that already had black majorities, which kept them from impacting elections across several districts.
The district court disagreed, declaring that "Gov. Wallace and segregation are long gone."
"Alabama has virtually eliminated any racial gap in voter registration or participation," the court held. "The Voting Rights Act was enacted in an era when Alabama persistently defied federal authority and could not be trusted to enact racial-neutral laws in voting. The real irony would come from punishing Alabama for striving in good faith to comply."
Speaking for the plaintiffs in front of the Supreme Court today, Richard Pildes doubted this good faith.
"Alabama employed rigid racial quotas to design all its black majority districts based on mere racial statistics alone," Pildes said. "This court has marked out a legitimate path to comply both with their Section 5" of the Voting Rights Act obligations versus the "unjustified use of racial categories."
But Justice Scalia raised an issue that would hamper both sides all day, by noting that Alabama wanted to even out the voting population across districts "in such a way that there was still the 69 percent black population that there used to be in order to avoid retrogression."
"Retrogression has never meant merely reproducing racial statistics purely for their own sake," Pildes responded. "It's meant preserving the ability to elect, preserving majority and minority districts."
"You realize, I assume, that you're making the argument that the opponents of black plaintiffs used to make here," Scalia countered. "They said, by requiring packing of minorities into certain districts, you're reducing their influence statewide."
Chief Justice John Roberts seemed even more skeptical: "I think that if Alabama had reduced the number of minority voters in majority-minority districts in any significant way, the Attorney General would have come down on them like a ton of bricks," he said.
"That is not correct, Your Honor," plaintiffs' counsel replied.
Justice Department Solicitor General Donald Verrilli's brief amicus arguments focused on both the state and plaintiffs' failure to take a district-by-district approach.
"The test under Shaw is whether race predominates to the derogation of traditional districting criteria," Verrilli said. "The lines on the map are what are being challenged here. Those lines are facially neutral. They may, in fact, reflect a violation of the Constitution if race predominated. But that's what you've got to prove, and the mere existence of this motive doesn't prove it for each district, and that's our point."
But speaking for Alabama, Montgomery Solicitor General Andrew Brasher said that "the district court expressly found that race did not predominate. The whole point of this plan was to preserve the status quo because the Republican Party had won a majority in the legislature for the first time in 130 years."
The district court dissent had credited testimony that the new districts "are part of a strategy to put the Republican Party in the same position that the segregationist white-only Democratic Party occupied in Alabama."
Chief Justice Roberts subtly echoed this concern. "The other side says it was impermissible for you to preserve the status quo because the opportunity for minority voters in the majority minority districts to participate in the electoral process had improved to the extent that maintaining the status quo would be characterized as packing," Roberts said.
Brasher responded that black and white voter registrations have now equalized, but Justice Kagan zeroed in on the racial issue.
"Mr. Brasher, let me just give you some numbers here from some of these districts," Kagan said. "House District 52, you needed to add 1,145 African Americans in order to maintain the percentage of African American voters, which was your number two criterion. You added 1,143. You missed by two. House District 55, you needed to add 6,981. You added 6,994. Senate District 23, 15,069. You hit at 15,185. I mean, those numbers speak for themselves, don't they? That in each of these cases you were determined, come what may and disregarding other criteria, to maintain the black voting age population. That was just a coincidence?"
"No, but that goes to my second point: those House districts that you were reading off are in the city of Birmingham. The city of Birmingham has over 200,000 people in it, 73 percent black," Brasher said, adding several other districts to show that the changes were made to avoid diminishing black voters' impact.
"If you cannot diminish the ability to elect, that means if there's a safe majority black district where there's a 100 percent chance that black voters can elect their candidates of choice, you cannot drop that to where they simply have a 50 percent chance," Brasher said.
Pildes had noted that in 2001, Alabama acknowledged that a 55 percent majority was enough to enfranchise black voters.
"But you don't have to use race in this way, Mr. Brasher," Kagan said. "Nobody would say that Section 5 required you to maintain a 78 percent district, and a 78 percent district was no longer needed with respect to a group's ability to elect a candidate of choice."
"Well, I respectfully disagree with that," Brasher said.
A decision is expected sometime next year.
Read the Top 8
Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.