Ruling Upends Alabama's Unconstitutional Legislative Districts
By Brian Lyman
It's back to the drawing board for the Alabama Legislature.
A federal court ruled that 12 of Alabama's legislative districts were unconstitutional, citing an improper use of race in their composition.
The three-judge panel of the 11th U.S. Circuit Court of Appeals enjoined the use of the districts in future elections but stopped short of intervening in the drawing of new districts.
"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," the judges wrote in a separate order.
The decision ends a chapter in a nearly five-year battle over the district lines -- which has gone to the U.S. Supreme Court -- and adds another item to a lengthy punch list awaiting state lawmakers next month.
The 2-1 majority of U.S. Circuit Court Judge Bill Pryor and U.S. District Judge Keith Watkins upheld the constitutionality of 24 districts challenged in a lawsuit brought by the Alabama Legislative Black Caucus and the Alabama Democratic Conference. U.S. District Judge Myron Thompson, while concurring in that decision, wrote that he would have found 12 other districts unconstitutional and argued the majority did not properly apply earlier instructions from the nation's high court.
But the impact of the decision will likely go beyond the affected districts. Redrawing the boundaries will likely mean adjustments to others.
"The ripple effect will require redrawing most, if not all of the state districts, in both the Senate and House," said James Blacksher, an attorney for the plaintiffs.
The judges ruled nine House and three Senate districts unconstitutional. Democrats represent all 12. Black lawmakers represent all but two of the districts.
"Some of what was done was political in nature to pack people in districts which eliminated the opportunity for them to partner in other areas," said Senate Minority Leader Quinton Ross, D-Montgomery, who represents Senate District 26, one of those found unconstitutional. "We're thankful for the opportunity to look at this, particular in these 12 districts."
Sen. Gerald Dial, R-Lineville, who co-chaired the committee that drew up the redistricting maps, said Friday he was reviewing the decision. But the senator said he expected to convene the redistricting committee early in the 2017 legislative session -- which begins Feb. 7 -- and address the boundaries during the three months the Legislature will meet.
"I think what we will do will get the affected individuals in a room ... and have a one-on-one look at what we've got to do to meet requirements of the court," he said. "We won't be adverse to any of those individuals."
The Legislative Black Caucus and the ADC argued that the Republican-controlled Legislature deliberately moved black voters, who tend to vote for Democratic candidates, into districts that prevented them from forming alliances with like-minded white voters, muting their voices in the process.
Legislators used a strict standard that prevented the House and Senate districts from going above or below one percent of their ideal population. Republicans argued that the standard allowed them to maintain minority percentages in those districts, and to address population losses in them.
Attorney General Luther Strange, who represented the state in the lawsuit, said in a statement Friday morning the office was reviewing the decision.
"We are pleased that the Court upheld the constitutionality of two-thirds of the state legislative districts under challenge," the statement said. "We will determine the next steps in consultation with the Legislative leadership and the Governor."
The offices of House Speaker Mac McCutcheon, R-Monrovia, and Senate President Pro Tem Del Marsh, R-Anniston, had no immediate comment Friday. House Minority Leader Craig Ford, D-Gadsden, said in a statement that Democrats always knew the districts were unconstitutional.
"Today's ruling highlights the need to take the politics out of drawing legislative districts and instead, rely on an independent, non-partisan commission," the statement said. "We look forward to working with the leadership to quickly solve this issue so that the 2018 elections take place without controversy or conflict."
The three-judge panel upheld the maps in 2013 over a dissent from Thompson, who said the districts amounted to a racial gerrymander. The U.S. Supreme Court ordered the panel to reconsider the maps in early 2015, saying that the Legislature should not have focused on minority percentages, but instead asked what percentage would be appropriate to allow minority voters to select their preferred representatives.
The nation's high court found Ross' district, more than 70 percent African-American, problematic.
Dial said he believed the Legislature could address the problems with Ross' district quickly.
The panel also found House District 77, represented by Rep. John Knight, D-Montgomery, unconstitutional. Knight said Friday he expected changes to go beyond the districts affected.
"I think you've got to look more at keeping precincts together, keeping counties together, common interests ... those are all the dynamics need to be looked at in this process," he said.
Pryor's 457-page opinion, joined by Watkins, tended to be technical in nature. The federal circuit judge, a former Alabama attorney general and potential candidate for the U.S. Supreme Court, wrote that to find a district unconstitutional, the court had to find not only that race was a predominant factor in the drawing of the boundary lines, but that it could not survive "strict scrutiny" -- that the state had to have "good reasons" for the use of race to meet legal criteria.
In Ross' district, the judges wrote that some of the splits between his Senate district and District 25 -- represented by Sen. Dick Brewbaker, R-Montgomery -- were "suspicious," finding that 58 percent of the people moved into Ross' district were black, while only 25 percent of those moved in Brewbaker's district were black.
The judges also ruled that the state made no arguments about strict scrutiny specific to that district.
"The splits tend to put a higher percentage of black people in District 26 than District 25, with the effect of increasing the black population percentage in District 26 and keeping the black population percentage in District 25 below 25 percent," the judges wrote.
Similarly, in Knight's district, the judges found that 57 percent of the voters moved into the district were black. In District 74, represented by Rep. Dimitri Polizos, only 16 percent of voters moved into the district were black. The judges called that a "similar phenomenon" to the Ross/Brewbaker districts, and found the district failed strict scrutiny.
Elsewhere, the judges upheld the maps. In District 78, represented by Rep. Alvin Holmes, D-Montgomery, the judges ruled that the splits did not appear to follow any racial pattern.
In two districts -- Senate District 23, represented by Sen. Hank Sanders, D-Selma, and House District 68, represented by Rep. Thomas Jackson, D-Thomasville -- the judges found race was the predominant factor but ruled that the districts survived strict scrutiny.
In Sanders' district, Pryor and Watkins wrote that it was a "close call" but found race to be the predominant factor in the drawing of the boundaries. But the judges wrote that they found compelling reasons to draw Sanders' district that way, citing testimony from Sanders that the majority-minority district should not be less than 62 percent black.
Thompson wrote in a 170-page opinion that the majority made "clear legal errors" in upholding Sanders and Jackson's districts, arguing Sanders' argument that the percentage was needed because "sometimes a lot of people don't vote" was inadequate as evidence. Thompson also argued the majority misread the U.S. Supreme Court's instructions, saying the design of a district was not the standard applied.
"If a plaintiff can prove that the State predominantly relied on race when drawing district lines, a cognizable injury exists even if that classification did not distort the district's shape or otherwise violate traditional redistricting principles," Thompson wrote.
(c)2017 the Montgomery Advertiser (Montgomery, Ala.)