Alabama's Redistricting Maps Back on Trial

by | August 26, 2015

By Brian Lyman

A panel of federal judges saw problems with Alabama's legislative district map and where it places minority voters.

But the judges indicated during two hours of arguments Tuesday morning that they wanted to see plaintiffs trying to have a new map drawn, while following criteria established by the Legislature in 2012.

That would include preserving incumbents, limiting county splits, maintaining the current number of minority districts and sticking with the Legislature's strict criteria on maintaining population.

"If we gave you a month ... would you be willing to submit a plan that met those criteria?" U.S. Circuit Judge Bill Pryor, a former Alabama attorney general, asked Richard Pildes, a professor at the New York University School of Law, speaking for black lawmakers seeking to overturn the map.

Pildes and other attorneys indicated they would be willing.

"It's a functional approach, not a numerical approach," said U.S. District Judge Myron Thompson, a member of the panel.

The judges did not take any action after the hearing. But the panel seemed to chart a course forward in a 3-year-old case that has already gone to the U.S. Supreme Court.

The Republican-controlled Legislature approved a 2012 redistricting plan that used a strict standard in maintaining minority percentages in majority-minority districts. Republicans who drew the maps said they had to follow the Voting Rights Act and maintain the number of majority-minority districts, most of which had lost population between 2000 and 2010.

The Legislative Black Caucus and the Alabama Democratic Conference sued to overturn the maps in 2012. The legislators argued that the maps packed black voters into a certain number of districts, making it hard to build coalitions with like-minded white voters and muting the voices of blacks in the political process.

Pildes told the court Tuesday that "racial factors took priority over all other factors," and that the people who drew the maps took other factors into consideration only "insofar as they reached these racial floors."

Andrew Brasher, solicitor general for Alabama, said in arguments to the panel that the plaintiffs had "conceded we have a compelling interest in satisfying the VRA." Brasher also said plaintiffs had presented no evidence that race was the primary factor in the creation of the districts.

The panel upheld the maps in 2013. But the U.S. Supreme Court remanded the decision in March, saying the judges needed to reconsider how race affected the districts.

Pryor and William Watkins, chief district judge for the U.S Middle District of Alabama, voted to uphold the map in 2013. Thompson, saying it created "racial quotas," dissented. In arguments Tuesday, the judges indicated the Supreme Court's guidelines raised questions about the map.

"I think there are some districts that to me, at least, are problematic," Pryor told Brasher during arguments. "I think there are some districts where you have a problem."

Watkins went further, saying the judges were likely to order some "remedy" over the maps.

Brasher argued some districts in predominantly black areas, such as Birmingham and the Black Belt, were going to maintain their populations levels due to the surrounding areas, and said "context" was critical. He also argued that the plaintiffs had plenty of time to submit an alternative map since the Supreme Court ruling.

"The reasonable inference is if they submitted such a plan, it would look like our plan," he said.

"It would be a reasonable inference if they declined to do so," Pryor replied, referring to his offer earlier in the hearing.

Pryor also appeared nonplussed when John Tanner, an attorney for the Alabama Democratic Conference, said the plaintiffs' use of the Legislature's strict standard could result in "29 or 30" majority-minority House districts, up from the current 27.

"I'd be real cautious," Pryor said.

Attorneys on both sides said after the hearing expressed optimism over the proceedings. Alabama Attorney General Luther Strange, who did not make an argument in the hearing, said the plaintiffs "have to prove" that race was the predominant factor in the creation of the maps.

"I think the court is trying to figure out what the Supreme Court of the United States wants it to do," he said.

James Anderson, an attorney for the legislators, said a proposed remedy for their side "won't be based primarily on race."

"You don't have to have 70 percent black population for black voters to (have) the representative of their choice," he said.

If the court ordered new maps drawn, new elections would follow. Anderson said the plaintiffs wanted to see that in 2016, though experts suggest it could be longer.

Roughly 20 legislators attended the hearing Tuesday morning. All but three were Democrats.

(c)2015 the Montgomery Advertiser (Montgomery, Ala.)