Democracy in Alabama?

It’s probably just coincidence, but last week, just as Donald Trump’s indictment in the classified documents case was laying bare the predicament facing the Republican Party, the United States Supreme Court took a step back from its recent dogmatic partisanship.

The case is Allen v. Milligan, concerning the boundaries of congressional districts in Alabama. It had been widely expected that the conservative majority on the court would take the opportunity to gut the remaining provisions of the Voting Rights Act, giving a green light to Republican legislatures to gerrymander to their hearts’ content: following the decisions in Shelby County v. Holder (2013), which overturned the preclearance provision of the act, and Rucho v. Common Cause (2019), which affirmed the constitutionality of partisan gerrymandering.

But not so. By a five to four majority, the court upheld the constitutionality of section two of the Voting Rights Act and affirmed the district court’s finding that the Alabama boundaries were in breach. Conservatives Brett Kavanaugh and chief justice John Roberts (who wrote the majority judgement) voted with the three liberal justices; the other four conservative justices dissented.

Alabama, in the deep south, is a strongly Republican state: it voted 63% for Trump in 2020. Its seven-member congressional delegation has split six-one in the Republicans’ favor at every election since 2010. Its population is roughly two-thirds white to one-third Black and Hispanic, and voting is polarised on racial lines: the vast majority of whites vote Republican and the vast majority of Blacks vote Democrat.

So the project of ensuring that Black voters have an adequate opportunity to elect representatives of their choice – the idea behind the Voting Rights Act – is in practice inseparable from ensuring that Democrat voters are adequately represented. Partisan gerrymandering and racial gerrymandering become indistinguishable, even though the first (by virtue of Rucho) is legal and the second is illegal.

It would not be difficult to draw a map of Alabama in which the seven seats all had white (and Republican) majorities. The Republican legislature, however, has chosen not to risk that, and has instead adopted the strategy of packing as many Black voters as possible into one district – the 7th, which starts in the rural west of the state and sends two long feelers into the respective urban areas of Birmingham and Montgomery. It is therefore safe Democrat, returning a Black woman; the other six are safe Republican and return white men.

This was the map, lightly revised at intervals since the 1980s, that the district court threw out. Given the growing Black population, it accepted that there was a need for a second Black-majority district, and that the cartography required for this would be no more convoluted than the existing map (a fairly low bar).

The Supreme Court majority agreed, relying on the court’s previous interpretation of section two in the 1986 case of Thornburg v. Gingles. The dissenters, on the other hand, would have overruled Gingles in fact if not in name. For them, the fact that a race-neutral approach to drawing the map would be unlikely to produce more than one Black-majority district (if that) was sufficient grounds for not imposing such an outcome on the state.

In the abstract, there is much to be said for the minority’s view. Trying to achieve proportionality of any sort – racial, political, whatever – in a system of single-member districts cuts against the grain (as the South Australian experience over many years testifies). It makes more sense to simply construct geographically compact and logical districts and let the partisan chips fall where they may, and of course it makes even more sense to scrap single-member districts and have real proportional representation.

But in a situation of racially polarised voting, geographically “fair” districts will produce unacceptable outcomes. And since the US steadfastly resists any move away from single-member districts, the Voting Rights Act in its clumsy way provides the only remedy [link added] – made even more anomalous by the otherwise blanket endorsement of gerrymandering in Rucho.

In their own anti-democratic fashion, the dissenters have logic on their side, but their day has not yet come.