When Everything's Not Enough

photo John Roberts

The United States Supreme Court is now being asked by the minorities it sought to protect with the creation of minority voting districts to end that protection because the results aren't to the satisfaction of the minorities doing the asking.

The Alabama case, which the court took up last Wednesday, is a sad denouement for the supposedly fair-minded idea of the Voting Rights Act's insistence on protected districts for minorities.

Those minorities are now, to borrow a phrase from the biblical book of Hosea, reaping the whirlwind.

Indeed, the insistence on minority districts so cowed Southern Republicans in recent years that they went to great lengths to comply with the protected districts, to ensure they come close to achieving the "one person, one vote" constitutional demand and to prove that they not be seen in any way, shape or form as racist in their governance.

The results of such gerrymandering protected the minority districts in question, which overwhelmingly vote for Democrats, but that left the surrounding voting districts with more whites, who usually vote for Republicans.

When the Alabama redistricting plan -- which even added a majority-minority district in the House -- was completed in 2012, the state -- at the time -- was required to get federal approval, which the Obama Justice Department gave.

Returns from last week's election, though, saw Democrats win just eight seats in the state Senate, all from districts in which there is a black majority. The state Senate now has one white Democrat and the state House six white Democrats.

No fair, say blacks.

"It really is segregation at its best," said state Sen. Quinton Ross, a member of the Alabama Legislative Black Caucus, which has filed one of the suits the court is taking up.

If it is, in fact, segregation, it is segregation demanded by the Voting Rights Act and sanctioned by the Eric Holder-led Justice Department. Upon an initial challenge, though, the voting district plan was upheld in December by a three-judge U.S. District Court panel.

The Voting Rights Act, after all, requires that newly drawn districts must not "retrogress" or limit the ability of minorities to elect the candidates of their choice.

What the plaintiffs seek now, they say, is to have the percentages of racial minorities so carefully calibrated in voting districts that they continue to win the protected districts but also be able to pick up seats outside the district.

A brief filed in the case by Alabama House Speaker Mike Hubbard and Senate President Pro Tem Del Marsh says, on the other hand, the case "is not about race or even civil rights generally" but "the Alabama Democratic Party's loss of 136 years of uninterrupted legislative power."

The Democrat-controlled legislature, the two say, passed what the members "publicly touted as the perfect political gerrymander." At the time, it resulted in blacks making up about 25 percent of state legislators, approximately the same percentage of blacks in the state.

Further, Hubbard and Marsh wrote, the rise of the Republican Party in the state grew under the Democratic redistricting plan.

"The Republicans are entitled to chuckle," Birmingham, Ala., voting rights lawyer James Blacksher told The Washington Post. "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."

With the arguments before the Supreme Court done, it would be interesting to be privy to the back halls discussions. Because liberal jurists will have to wrangle with the Voting Rights Acts provisions they have insisted be in place, while conservative justices will have to consider the importance of the conservative majorities the minority districts have helped grow.

Whatever the court decides, it is likely to have a broader effect than Alabama since a number of states have redrawn voting districts while keeping uppermost in their minds the need to protect minority districts.

Or, the court could take the advice of Chief Justice John Roberts, who wrote in a school desegregation case in 2007, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.

In other words, Supreme Court, heal thyself.

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