Judicial Elections and Government Integrity at the Supreme Court

The Supreme Court issued a 5-4 campaign finance ruling this morning. But rather than another Citizens United or McCutcheon, the Court this time upheld a state campaign finance restriction against a First Amendment challenge. In the case of Williams-Yulee v. The Florida Bar, the Roberts Court narrowly upheld Florida's ban on state judicial candidates directly soliciting campaign funds. With the difference of only one vote, even this reasonable limitation would have been struck down.

If only the Court would apply the reasoning of this case outside the narrow area of judicial elections. The Justices acknowledge that a state can reasonably conclude that an appearance of bias and impropriety is created when a judicial candidate directly asks someone to give her a campaign contribution. The Chief Justice wrote that "it is the regrettable but unavoidable appearance that judges who personally ask for money may diminish their integrity."

But that isn't only because they are judges. Any elected official has an obligation to serve the public, whether that is by ruling consistent with the law (like judges do) or pursuing the interests of your constituents and community (as legislators and executives do). That is very different from using that public office to serve the interests of wealthy private interests. When a congressional or presidential candidate wins office due to the financial largess of a small number of extremely wealthy and powerful donors, it just may "diminish their integrity" in the eyes of the public.

It isn't just judges who risk the appearance of corruption when they engage with funders. As we have seen in cases like Citizens United and McCutcheon, Roberts and his conservative colleagues are unwilling to concede that Americans see corruption and the appearance of corruption in the outrageous sums of money being funneled into non-judicial elections.

As for judicial elections (the subject of this case) Justice Ginsburg's concurring opinion is worthy of significant attention. She wrote separately to expound on the "substantial latitude" the Court should give states to regulate judicial campaign finance, and she discussed how much money is now flowing into judicial elections, and the harm that causes to justice:

When the political campaign-finance apparatus is applied to judicial elections, the distinction of judges from politicians dims. Donors, who gain audience and influence through contributions to political campaigns, anticipate that investment in campaigns for judicial office will yield similar returns. Elected judges understand this dynamic. ...

In recent years, moreover, issue-oriented organizations and political action committees have spent millions of dollars opposing the reelection of judges whose decisions do not tow a party line or are alleged to be out of step with public opinion. ...

Similarly portraying judges as belonging to another political branch, huge amounts have been spent on advertisements opposing retention of judges because they rendered unpopular decisions in favor of criminal defendants. ...

Disproportionate spending to influence court judgments threatens both the appearance and actuality of judicial independence. Numerous studies report that the money pressure groups spend on judicial elections "can affect judicial decision-making across a broad range of cases."

The threat to the judicial branch of government in states with high-dollar judicial elections is serious and real.

Today's opinion on judicial elections is an opportunity to focus on the threat to the political branches, as well.

PFAW Foundation

Diversity vs. Scalia at Marriage Oral Arguments

There was a fascinating exchange during oral arguments in the marriage cases this morning that highlighted the importance of having a diverse federal judiciary.

Echoing a right-wing talking point that is utterly without legal merit, Justice Scalia suggested that ministers who oppose marriage equality might be compelled to violate their religious beliefs by marrying same-sex couples. Once the Court rules that the state cannot constitutionally discriminate against same-sex couples seeking to marry, then clergy – who are instruments of the state when they perform a civil marriage – cannot constitutionally decline to marry same-sex couples, Scalia suggested.

I don't see how you could possibly allow that minister to say, I will only marry a man and a woman. I will not marry two men. … I don't see any answer to that. I just don't.

Really??

Fortunately, while Justice Scalia didn't see any answer to that, Justice Kagan was there to inject what should have been an obvious point:

[T]here are many rabbis that will not conduct marriages between Jews and non-Jews, notwithstanding that we have a constitutional prohibition against religious discrimination. And those rabbis get all the powers and privileges of the State, even if they have that rule, many rabbis won't do that.

Yes, Justice Scalia, throughout American history, with marriage limited to opposite-sex couples, clergy have been free to refuse to marry people if doing so violates their religious beliefs, even when discrimination against that couple by the state would be unconstitutional. That will not change just because the religious belief in question is about two men or two women. It's called the First Amendment.

For many American Jews, intermarriage is common among our friends and family, so we are quite familiar with rabbis who choose not to marry mixed-faith couples. Bringing her life experience to the bench, Justice Kagan was able to help ease Justice Scalia's mind.

But it's disconcerting to think that Scalia had to be reminded of this in the first place.

PFAW Foundation

Are Conservative Justices Suggesting that Oppression Justifies More Oppression?

At today's oral arguments in Obergefell v. Hodges (the marriage cases), some Justices expressed concern with concluding that the Constitution prohibits marriage bans when no state allowed same-sex couples to marry until 2003, and that they could not think of a society in history that had allowed same-sex couples to marry.

It seems that gets things backward. It's not like throughout recorded history, gays and lesbians have been treated well but for the itty-bitty fact that we were not allowed to marry the people we loved. In fact, the opposite is true. For much of history, gays and lesbians have been stigmatized, tortured, scorned, cast out, etc. by the governing forces in their societies, both church and state. American society from our founding is far from immune from this indictment.

It is hardly a surprise that societies that suppress a minority don't establish institutions like marriage to take that minority's needs into account.

The absence of marriage equality in much of human history is not a rationale to continue to deny this fundamental right to same-sex couples. Oppression does not warrant continued oppression under the U.S. Constitution's Equal Protection Clause. Exactly the opposite is true: A history of oppression warrants heightened scrutiny of laws that harm the targets of historical oppression.

PFAW Foundation

In Marriage Arguments, Scalia Overlooks the People's Role in Adopting Equal Protection

During oral arguments in Obergefell v. Hodges this morning, Justice Scalia sought to frame the marriage issue as a question of who decides how to define marriage: the people, or the Court?

At one point, he asked how many states have chosen to allow same-sex couples to marry by legislative act or referendum. When the attorney for the couples also mentioned states whose courts have interpreted their state constitutions as requiring marriage equality, Scalia responded:

But ... that's not the people deciding, it's judges deciding.

But those state constitutions, like the federal one Scalia is tasked to interpret, were adopted by the people. And in adopting constitutional guarantees of Equal Protection, the people agreed to impose powerful and permanent limitations on their future lawmaking. The people agreed that they wanted to be held to a higher standard when, then or at some future point, they decide to pass laws harming a particular group. And the people chose to do so by adopting Equal Protection as a general principle, rather than adopting a specific list of who is worthy of protection.

The Supreme Court should rule that denying same-sex couples the right to marry violates the Equal Protection Clause, a promise the people made to themselves and to us when they adopted the 14th Amendment.

PFAW Foundation

Justice Ginsburg Tackles Idea that Marriage Definition Has Existed for Millennia

One of the words being bandied about at this morning's oral arguments in the marriage cases was "millennia." One of the anti-equality side's main talking points is that equality proponents are asking the Justices to "redefine marriage," as if marriage has been static in nature for time immemorial. Justice Kennedy raised this issue early in oral arguments. As reported in the Washington Post:

10:06 a.m.: Justice Anthony M. Kennedy, who is believed to be the deciding vote in this case, quickly jumped in with a question about the long-standing view of marriage as between two members of the opposite sex. "The word that keeps coming back to me is ‘millennia,' " he said.

Same-sex marriage has been legal in the United States for only about a decade, since Massachusetts legalized it in 2006, Kennedy said. "I don't even know how to count the decimals," he said. "This definition has been with us for millennia."

Perhaps no one is better qualified to tackle this aspect of the case than Justice Ginsburg. As live-blogged by SCOTUSBlog:

One seemingly striking moment came when Justice Ginsburg spoke of how it was recent changes to the institution of marriage that made it appropriate for gay and lesbian couples -- in particular, it becoming an egalitarian institution rather than one dominated by the male partners who determined where and how the couple would live.

Indeed, the idea of marriage as the voluntary union of two lawful equals is hardly one that goes back millennia, or even to our nation's founding. For much of American history, women who got married actually lost their civil identities as individuals, being seen in the eyes of the law only as the wives of their husbands, who had all the legal rights. In the 19th century, it was considered a major reform to allow a woman to keep her own property in her own name after she married, rather than having it automatically transfer to her husband. A more recent reform is that a wife is not automatically considered to have given consent to her husband for sexual intercourse.

Marriage as it is practiced in our country is hardly millennia old. Much of what defined marriage in U.S. history would today be struck down as violating the rights of women under the 14th Amendment. When a New York court in the 1980s struck down that state's rape exemption that allowed men to rape their wives, the judge opened his opinion with quotation from John Stuart Mill's 1869 essay The Subjection of Women: "Marriage is the only actual bondage known to our law. There remain no legal slaves, except the mistress of every house."

But the court that struck down the spousal rape exemption more than a century after that was written was not engaged in an illegitimate "redefinition" of marriage. It was simply enforcing the 14th Amendment, as the Supreme Court is being asked to do today.

PFAW Foundation

PFAW Telebriefing Unpacks Legal Issues and Real-World Implications of Marriage Cases

As the Supreme Court prepares for arguments about the right to marry, PFAW Foundation Senior Fellow Jamie Raskin says our country may be “on the verge of a historic breakthrough.”

On Thursday, PFAW hosted a telebriefing for members and supporters on this historic moment in anticipation of oral arguments in the Supreme Court marriage cases (Obergefell v. Hodges) next week. PFAW Executive Vice President Marge Baker moderated a conversation among affiliate PFAW Foundation Senior Fellows Jamie Raskin and Elliot Mincberg as well as People For supporters who called in to join the discussion.

In the telebriefing, Raskin and Mincberg unpacked some of the questions before the court — not only whether states can prohibit same-sex couples from marrying or refuse to recognize marriages from other states — but also the implications of the various types of reasoning the justices may use to reach their decision.

They also reflected on the remarkable social transformation our country has seen on the rights of LGBT people. Raskin remembered that the 1986 Bowers v. Hardwick decision, which upheld the criminalization of “sodomy,” came out while he was in law school. With the Court’s steady march away from that kind of legal reasoning, he said, “there’s no going back from here.”

Mincberg pointed out that, unfortunately, the backlash has started before the Supreme Court even decides the cases. With “right to discriminate” legislation pending in more than a dozen states and a handful considering “marriage refusal” bills, it’s clear that the far Right is already forging ahead with a nationwide push to undermine the expanding rights of LGBT Americans.

Call participants shared some great questions and opinions, including a retired pediatric doctor who asked why the principles accepted by the medical community to take care of your patients rather than question or judge them have not been accepted by the political community as well.

Listen to the full telebriefing here:

PFAW

Scalia and Roberts Don’t Know Best: Here’s How We Take Our Politics Back from Reactionary Court and Billionaire Donors

This piece, by PFAW Senior Fellow Jamie Raskin, was originally published by Salon.

If you take away Prohibition (the 18th Amendment) and its repeal (the 21st), most of our constitutional amendments since the original Bill of Rights have expanded the voting rights and political equality of the people.

Our post-Reconstruction amendments have abolished slavery (the 13th), provided for equal protection of the laws and required reduction of states’ congressional delegations if they disenfranchise eligible voters (the 14th), denied states the power to discriminate in voting based on race (the 15th) and shifted the mode of election of U.S. Senators from the legislatures to the people (the 17th). They have passed woman suffrage (the 19th), given residents of the federal district the right to vote and participate in presidential elections by casting electors (the 23rd), abolished poll taxes in federal elections (the 24th) and lowered the voting age to 18 (the 26th).

Moreover, many of these amendments have directly responded to Supreme Court decisionsdenying the political rights of the people.  For example, the 19th Amendment overturned the Court’s decision in Minor v. Happersett (1875), which held that Equal Protection did not protect the right of women to vote, affirming precedents finding that women’s proper place is in the domestic sphere.  Similarly, the 24th Amendment banning poll taxes in federal elections overturned the Court’s 1937 decision in Breedlove v. Suttles upholding such taxes.

But if you listened only to some of my colleagues in the legal establishment, you might never know that our unfolding Bill of Rights is a dynamic chronicle of the democratic struggles of the people for participatory political equality nor would you know that the people have often had to override reactionary decisions of the Supreme Court in the process.

A lot of lawyers today react with horror to U.S. Reps. Marc Pocan and Keith Ellison’s excellent push for a constitutional amendment to establish an affirmative and universal right to vote against recurring state efforts to disenfranchise people.  And a lot of academics were aghast last summer when every Democratic United States senator supported a constitutional amendment to reverse Citizens United, McCutcheon v. FEC (2014) and Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett (2011).

The amendment, backed by the vast majority of Americans and a surging national campaign that 16 states and more than 650 cities and towns have joined, would restore the people’s power to stop CEOs from spending corporate treasury wealth on political races, to impose reasonable campaign finance limits such as caps on aggregate contributions, and to develop public financing laws with matching grants that help empower poorer candidates to be heard over the roar of big money.

Yet we are constantly invited to believe that, however much big money comes to dominate our politics and control public policy, we must never touch our Constitution. It must be hidden away in the attic where it will be tended by wise Supreme Court justices and law professors who know that the people’s constitutional values will always be inferior to those of the judiciary and the experts.  This attitude betrays our progressive democratic heritage and Thomas Jefferson’s important warning:

Some men look at constitutions with sanctimonious reverence, and deem them like the arc [sic] of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment . . . . But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times.

The country’s most prolific voting rights scholar and blogger, Richard Hasen—a colleague and friend of mine—is the most recent legal academic to pour cold water all over the movement for a constitutional amendment to rebuild the statutory wall protecting democratic elections from the flood of plutocratic and corporate wealth.  This is the wall that has been mostly demolished by the Roberts Court in both Citizens United and the McCutcheon decision.

While Citizens United turned every corporate treasury in the country into a potential political slush fund, McCutcheon wiped out all aggregate limits on federal campaign contributions so that tycoons can now max out to every incumbent Member of Congress–plus all their opponents!  The top half of the top 1 percent can now pretty much bankroll all federal campaigns, which is one reason why run-of-the-mill Republican millionaires and bundlers are complaining to the Washington Post that they have been bypassed in the nation’s wealth primary by “multi-multimillionaires and billionaires.” The bottom half of the top 1 percent is getting a sense of what it is like to be a political spectator in the country’s exclusionary wealth primary.

The Post also reports that public anxiety about plutocracy is becoming a key issue in the presidential election—not just among Democratic activists for whom it is “red meat,” according to Professor Hasen, but for Republicans and Independents too—pretty much everyone who lacks the strategic advantages of Sheldon Adelson and the Koch brothers. Earlier this month, Republican Sen. Lindsey Graham also pointed to the need for a constitutional amendment to fix the damage done by Citizens United.  Indeed, if you don’t think the accelerating takeover of our politics by big money affects public policy in the real world, you may or may not be an academic, but you are definitely too innocent to be let out of the house by yourself.

In launching her 2016 campaign, Democratic presidential candidate Hillary Clinton declared a “big fight” to fix “our dysfunctional political system” by getting “unaccountable money out of it once and for all, even if it takes a constitutional amendment,” and I say good for her. Given Clinton’s legislative and political experience and her own prodigious navigation of our money politics, she obviously knows how the Roberts Court’s magical transformation of for-profit business corporations into political membership groups has completely distorted politics in the Citizens United era.  Of course, some of the Republican presidential candidates are charging her with hypocrisy for seeking to change the plutocratic political system that shapes her campaign, along with everyone else’s, and sullies everyone who touches it.  But this is predictable and pedestrian.  The nihilistic enemies of reform prefer nothing systemic to change just so long as they can keep denouncing Hillary Clinton.

Thankfully there is no talk of hypocrisy in Hasen’s critique, but still all Clinton gets from him is a lot of negative energy.  First, he faults her for not trying to fix “the nation’s disclosure laws,”  which is strange because she supported the Disclose Act, which U.S. Rep. Chris Van Hollen introduced and which Republicans killed, and she has always championed disclosure.  It is also strange because Clinton is clearly treating a constitutional amendment as a last resort in a struggle against a runaway faction of five plutocrats on the Supreme Court.  If I am reading her correctly, Clinton wants unaccountable corporate money—which is now spent by CEOs in our political campaigns on a secret basis and without any consumer, shareholder or citizen control over it—to be subject to public regulation “even if it takes” a constitutional amendment. That doesn’t sound so reckless to me.

For Hasen, it seems sufficient to work for years or decades to mandate disclosure of the billions of dollars in corporate money coursing through the veins of the body politic, and then leave things at that.  He is afraid that actually restoring the power of Congress to impose “reasonable” and viewpoint-neutral limits on corporate political expenditures would be subject to an effective judicial veto through reinterpretation by “a conservative majority on the Roberts Court” and therefore useless.  Well, it is also the case that the addition of the words “equal protection” to the Constitution were effectively nullified through reinterpretation by a Jim Crow Supreme Court between Plessy v. Ferguson (1896) and Brown v. Board of Education(1954).  But does that make passage of the Fourteenth Amendment a bad idea?  The Supreme Court has been a conservative and reactionary institution for most of our history, but that is precisely the reason for the people to write our Constitution in a way that advances and protects strong democracy. Having the right constitutional language in place may not be sufficient to constrain the reactionary elitism of the Supreme Court, but it is certainly necessary.

If we just wait around for new justices to change things and fail to directly engage this constitutional question in the public arena, we can expect to see the few remaining bricks of campaign finance law flattened by the Right and the Court, including base limits on individual  contributions, the Tillman Act’s century-old ban on corporate contributions to federal candidates, the rules against “coordinated expenditures” between candidates and independent spenders, and the limits in 29 states on making campaign contributions during legislative sessions–all of them clearly at odds with the absolutist dogmas of the Right: that political money is political speech, that business corporations are First Amendment-protected political (and religious!) associations, and that the only kind of political corruption we can acknowledge and regulate are quid pro quo transfers tantamount to bribery.

But Hasen, finally, calls a constitutional amendment a “political nonstarter” because of the difficulties of passage.  But here he ignores not only the success that popular movements have had in inscribing democratic values in the Constitution throughout our history, but also the way that serious constitutional movements can reshape the terrain of American politics with or without final passage and ratification.  For example, the heroic movement for the Equal Rights Amendment in the 1970s not only led to widespread adoption of state constitutional amendments and significant federal statutory changes advancing the equal rights of women but also helped shock the Supreme Court into action to apply “heightened scrutiny” to official gender-based discrimination under Equal Protection doctrine.  Constitutional movements can change the mind of the Court.

Whether or not we summon up the two-thirds of Congress and three-fourths of the states needed to pass a strong new anti-plutocracy amendment, the movement for such an amendment is essential to change the degraded assumptions of the Citizens United era.  It will open up space for revival of the Disclose Act, for consideration of the “Shareholders United” legislation that I and other legislators have been advancing at the state level, for progress for small-donor plans like Congressman John Sarbanes’ Government By the People Act, and for an honest debate about Citizens United, which turned on its head two centuries of conservative understanding of what a corporation is.

Even if the best we can hope for is some modest new disclosure rules and a few new Supreme Court justices who tilt towards democracy over plutocracy, as Hasen advises Hillary Clinton, these outcomes are far more plausible and likely with a lively popular constitutional movement on the ground than the defeatist attitude that the Supreme Court always knows best.

PFAW

Clinton Recognizes the Key Role of Supreme Court Nominations in Protecting Our Democracy

Hillary Clinton's campaign has made clear perhaps the most important way that America's choice for president in 2016 will have a profound effect for good or for ill on the health of our democracy: the next president's Supreme Court nominees.

As reported in Bloomberg, Clinton campaign chair John Podesta noted the importance of Supreme Court nominations during an interview with PBS's Charlie Rose yesterday:

"What she's out there doing is saying that we need to clean up financial—the campaign finance. Just listen to the voices of everyday Americans to, you know, move forward, and if it takes a constitutional amendment, so be it. I think the first thing that she'll do, quite frankly—and that this will set her apart from her Republican opponents—is that she'll appoint Supreme Court justices who protect the right of every American to vote, not every corporation to buy an election."

The Roberts Court's devastating campaign finance rulings like Citizens United have all been 5-4. It is that one-vote margin that gave corporations the ability to pour unlimited amounts of dark money into influencing our elections, that has tossed out common-sense efforts to restore the voices of those who are not among the nation's financial elite, and that has ramped up the ability of millionaires and billionaires to give even more money directly to parties and campaigns.

But those recent cases are sharp departures from the Court's previous jurisprudence on the First Amendment, and it could take only one new Supreme Court Justice to overrule them.

Similarly, the rampant assault on voting rights we have seen in recent years can be traced back to bad rulings in Shelby County (gutting the Voting Rights Act) and Crawford (okaying restrictive photo ID requirements to vote). We can be sure that more challenges to the right to vote will make their way to the Supreme Court, and it is critical that we have Justices who understand the importance of protecting that right.

Three of the current Justices will be 80 or older by the time the next president is inaugurated, and a fourth will turn 80 in 2018. The next president may have one or more opportunities to change the Court, either to strengthen the current hard-right majority for a generation or more, or to restore a Court that we can rely on to protect our rights and our democracy.

PFAW

Arkansas Governor Does Only a Partial Retreat on RFRA

Yesterday, the Arkansas legislature approved a so-called "Religious Freedom Restoration Act" bill similar to Indiana's RFRA. Today, the governor surprised people by rejecting the bill as written and asking for changes. As CNN reports:

Arkansas Gov. Asa Hutchinson says he does not plan to sign the religious freedom bill that sits on his desk right now, instead asking state lawmakers to make changes so the bill mirrors federal law.

The first-term Republican governor said he wants his state "to be known as a state that does not discriminate but understands tolerance."

While the requested change would remove some of the dangerous aspects of the bills that differentiated them from the federal version, it would still leave the door open to state-sanctioned discrimination in the name of religion.

The federal RFRA dates back to 1993, and neither its text nor its purpose empower anyone to bypass laws protecting LGBT people from discrimination. However, as PFAW Senior Fellow Elliot Mincberg has written, the Supreme Court drastically rewrote the law last year in its 5-4 Hobby Lobby decision:

[As Justice Ginsburg explained in her dissent,] the Court effectively rewrote RFRA so that it could be invoked by for-profit corporations, and so that the original law protecting individuals against a "substantial burden" on the exercise of religion was transformed to allow claims by a business owner that complying with a neutral law offended their religious beliefs in some way. Under the majority's view, Justice Ginsburg suggested, RFRA could be interpreted to "require exemptions" in cases where religious beliefs were used to justify actions that discriminated on the basis of race, gender, and sexual orientation. Pointedly, Justice Alito responded only that "prohibitions on racial discrimination" would be safe from a RFRA exemption claim, but said nothing about gender or LGBT status.

That's why Gov. Hutchinson's call for a bill that matches the federal RFRA does not solve the discrimination problem. A state law tracking the federal RFRA and passed after Hobby Lobby is far more likely to be interpreted by the courts along the same lines. This is especially so since the bill's supporters regularly cite their desire to "protect" businesspeople who are religiously offended by same-sex couples from serving them.

The Arkansas and Indiana RFRAs have features making them even more open to be used as vehicles for otherwise illegal discrimination than the federal RFRA as transmogrified by the Roberts Court. But if Gov. Hutchinson succeeds in getting a bill that matches the federal version, he still will not have accomplished his stated goal of making Arkansas "known as a state that does not discriminate."

PFAW

Supreme Court Sends Alabama Racial Gerrymandering Case Back to Lower Court

The Supreme Court issued a 5-4 ruling yesterday disagreeing with a lower court that had upheld Alabama's racially gerrymandered state legislative redistricting. The cases are Alabama Democratic Conference v. Alabama and Alabama Legislative Black Caucus v. Alabama.

As we discussed in our Term Preview, the Republican-controlled Alabama legislature enacted a state redistricting plan after the 2010 Census that transferred a significant portion of the black population that had previously been in majority-white districts into districts that were already majority-black, a process some have called bleaching. (This plan was adopted while Alabama was still subject to the preclearance provisions of Section 5 of the Voting Rights Act, before Shelby County v. Holder.) Ostensibly to comply with the requirement under Section 5 that new lines not lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise, legislators decided that the African American percentages in the redrawn majority-minority districts had to be at least whatever they had become before redistricting. So if a district that was (say) 65% African American in 2002 had become 75% African American by 2010, the new lines had to keep the district at least 75% African American.

Because of population shifts over the past decade and a decision to minimize population differences among districts, this policy meant that African Americans in majority-white districts were redistricted into majority- and supermajority-black districts.

The Alabama Legislative Black Caucus and the Alabama Democratic Conference argued that legislators had misinterpreted Section 5, that race was impermissibly the overriding criterion used by legislators in drawing lines, and that the redistricting plan violated the Fourteenth Amendment. But a special three-judge district court had upheld the redistricting, ruling that (1) minimizing population differences among districts, and not race, was the predominant factor in drawing the lines, so strict scrutiny didn't apply; and (2) even if strict scrutiny applied, the boundaries were narrowly tailored to achieve the compelling purpose of compliance with the preclearance provisions of Section 5 (which was in force then).

In an opinion written by Justice Breyer and joined by the other moderates plus Justice Kennedy, the Supreme Court repudiated the lower court, sending the case back so certain districts can be reanalyzed under the proper standards to determine if they are racially discriminatory. They held that Alabama can't avoid an analysis of whether race was the predominant factor by pointing to its desire to have population balance among districts:

[I]f the legislature must place 1,000 or so additional voters in a particular district in order to achieve an equal population goal, the "predominance" question concerns which voters the legislature decides to choose, and specifically whether the legislature predominately uses race as opposed to other, "traditional" factors when doing so.

Another key part of the ruling was the discussion of Section 5, which the Court made clear does not require a covered jurisdiction to maintain a particular numerical minority percentage. Instead, it requires the jurisdiction to maintain a minority's ability to elect a preferred candidate of choice.

The state's Section 5 rationale seemed like a stretch designed to justify a redistricting process that some have called "bleaching." Yesterday's ruling will ensure that no one grasps for that particular straw again in an effort to cover up racial gerrymandering. (This assumes, of course, that Congress eventually restores Section 5's efficacy by adopting a new formula for coverage, since the Roberts Court struck down the existing formula in the infamous 5-4 Shelby County ruling.) The case is also important because the dissent by the four most right-wing Justices, which was only one vote from becoming the majority opinion, would have allowed the Alabama legislature in this case to use race in drawing districts in a way that would harm minority voters.

PFAW Foundation