ATMORE, Ala. — Alongside the andouille gumbo, the crab-and-shrimp bisque and a succulent smoked pork shoulder, there was an endangered species featured at this town’s recent Taste of the South picnic.
Her name is Susan Smith, and she is a white Democrat seeking election to the Alabama Senate.
Such creatures used to rule the state, but only four remain among Alabama’s 35 senators. Two of them decided not to compete in Tuesday’s election after the Republican super-majority in the legislature redrew boundaries to make their districts more hospitable to GOP candidates.
It’s a familiar story in the increasingly Republican South. But the Supreme Court has decided to step into this one and will hear arguments in the matter next week. The justices are being asked to find that, as has happened many times in Alabama’s history, race played an improper role in how the state was reapportioned.
But the essence of the allegation is not that Republicans made it too hard for African American candidates to be elected. It’s that they made it too easy.
The challengers said the mapmakers packed African American voters into districts where they already enjoyed a majority, diluting their power elsewhere and easing the way for white Republicans to win everything else.
A three-judge panel that examined the 2012 redistricting process ruled 2 to 1 that the plan enacted by Alabama was constitutional and said the legislature’s intentions were not improper.
The challengers — black elected officials and the Alabama Democratic Conference — alleged that the plans “were the product of a grand Republican strategy to make the Democratic Party the ‘black party’ and the Republican Party the ‘white party,’ ” wrote Judge William H. Pryor Jr. of the U.S. Court of Appeals for the 11th Circuit. “The record does not support that theory.”
James Blacksher, a longtime voting rights lawyer in Birmingham who is representing one set of the challengers, responded, “I always thought the Republicans in Alabama have been pretty straightforward about that.”
One point that all sides might agree on is Pryor’s observation that redistricting is a “political thicket.”
It’s a thicket that courts generally try to stay out of when all that is at stake is partisan power.
Alabama says that’s all the challenge is about.
“This case is not about race or even civil rights issues generally,” says a brief filed by Alabama House Speaker Mike Hubbard and Senate President Pro Tem Del Marsh. “Rather it is about the Alabama Democratic Party’s loss of 136 years of uninterrupted legislative power.”
Hubbard and Marsh write that Democrats passed what they “publicly touted as the perfect political gerrymander” when they controlled the legislature in 2010. “It takes a brass neck” for Democrats to complain when Republicans do the same, they add.
Moreover, they note that the rise of the Republican Party occurred under the Democratic redistricting plan. The GOP controls every statewide elected office and all but one congressional seat.
But if redistricting is a political thicket, it turns into a legal one when race is involved. States must walk a tightrope: The Voting Rights Act requires states and the courts to sometimes take race-based actions to remedy past racial inequality, while the Constitution requires suspicion about any explicit or excessive use of race by government.
In Alabama’s case, at the time of redistricting, it was covered by Section 5 of the act. That required any plan to be approved in advance by federal officials to make sure that there was no erosion in the ability of African Americans to elect candidates of their choice.
The Republicans’ plan retained the eight Senate districts where minorities accounted for a majority of voters — all held by Democrats and all but one by an African American — and added a majority-minority district in the House. The Justice Department approved.
“When they gave their approval, I thought we were home free,” said Rep. Jim McClendon, the author of the House plan.
“Here’s the view from 10,000 feet: About 25 percent of Alabamians are minorities, African Americans. And about 25 percent of our legislators are African Americans,” McClendon said. “That seems like it should pass the smell test.”
But U.S. District Judge Myron Thompson, who dissented from the panel’s decision, said the plan did not pass the smell test with those most directly affected.
“The only racial dynamic at play in Alabama’s plans is that white members of the Alabama legislature, and the white ones alone, have expressly and specifically targeted black legislators and the members of their districts for difference in treatment solely because of the race of those legislators and over those black legislators’ deep and vocal objections,” he said.
The Republican authors of the redistricting plan have argued that they were required to try to maintain the existing percentage of minority voters in the majority-minority districts, even if this figure was higher than needed to ensure minorities could elect the candidates of their choice.
Thompson said this approach misinterpreted Section 5’s requirement and led to the use of impermissible “racial quotas.”
“Race was the predominant factor in the drafters’ decisions to draw the majority-black districts as they did,” he wrote. “This is clear from an examination of the racial quotas they adopted.”
Republicans said they were trying to adhere to a constitutional command: to keep districts across the state close to the “one person, one vote” standard. Because most of the African American-majority districts had become underpopulated over the past 10 years, the legislature had to move large numbers of voters into those districts by redrawing boundaries. And Republicans agree they made sure most of those voters were black.
For instance, in Sen. Quinton Ross’s district in Montgomery, the mapmakers needed to add 15,785 people to bring his district up to the ideal size. Only 36 of them were white.
That meant that the surrounding districts became whiter. And in a state with one of the nation’s most racially polarized voting patterns, Republican chances in the neighboring districts were increased.
Thompson noted that there was a “cruel irony” in Alabama’s reliance on Section 5 to justify its plan.
Alabama successfully challenged the act, persuading the Supreme Court in 2013 to rule that the state no longer should have to seek federal approval to change its election plans. After decades of supervision, Alabama could now be entrusted to protect the franchise of minority voters, the state argued.
“Even as it was asking the Supreme Court to strike down the requirement of preclearance for failure to speak to current conditions, the State of Alabama was relying on racial quotas with absolutely no evidence that they had anything to do with current conditions,” Thompson wrote.
There may be other contradictions in the case, as well.
For instance, while Alabama won approval for its plan from the Justice Department, Solicitor General Donald B. Verrilli Jr. will be telling the Supreme Court that the plan should be sent back for more work anyway.
The Obama administration says Justice Department officials looked only at the issue of whether Alabama had maintained the proper number of majority-minority districts. Verrilli said the three-judge panel should have undertaken a closer examination of the role race played in creating individual districts.
The case seems to scramble notions about the political parties and the creation of safe districts for African Americans. Democrats were instrumental in creating the districts but now find that the concentration of their most loyal constituents hurts their chances elsewhere.
And black elected officials, like those in Alabama, say they lose colleagues with whom they can form coalitions to further their goals.
“The Republicans are entitled to chuckle,” said voting rights lawyer Blacksher. “What was good strategy for getting blacks to the table turns out decades later not to be the best strategy for African American voters to actually enjoy some political power.”
Whether or not the plans are ultimately sent back for more work, Tuesday’s elections will be decided using the new boundaries.
In the Senate district where Smith is running, the plan reduced minorities from about 30 percent to 24 percent. It is sometimes difficult running as a Democrat in a conservative state, she said.
Smith, an Atmore City Council member, said she tells voters, “There’s nothing I can do about Obama and nothing my opponent can do, either.”
She has been waging a spirited campaign in the district, which now encompasses 4,768 square miles and all or parts of eight counties.
But she must be considered an underdog. After the redistricting and after the Democratic incumbent decided not to run, it appeared the party would not field a candidate until Smith decided to run at the last minute.
“Others had been asked, let me say that,” she said.
Robert Barnes has been a Washington Post reporter and editor since 1987. He has covered the Supreme Court since November 2006.
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