Just eight days after the most recent federal elections, Richard Pildes, Sudler Family Professor of Constitutional Law, will appear before the Supreme Court to argue on behalf of the appellants in a major racial gerrymandering case.

Richard PildesAlabama Democratic Conference v. Alabama sprang from that state’s 2012 state legislative redistricting, in which lawmakers instructed their redistricting consultant to include the same number of majority-minority districts as in the 2001 redistricting, as well as the same percentage of African Americans within each of those districts, limiting the population deviation to no more than two percent. Because of population shifts in the years between redistrictings, many African Americans were moved into majority-minority districts, effectively packing more African Americans into fewer districts. As a result, Republican voting power increased in districts across the state.

The appellants’ brief, co-written by Pildes, contests Alabama’s claims that its race-based redistricting policy was required by the non-retrogression requirement of Section 5 of the Voting Rights Act. The brief points to a recent line of Supreme Court cases, beginning with Shaw v. Reno (1993), that established both a permissible population deviation of up to 10 percent and, more generally, a strict-scrutiny standard for redistricting based on race: “Taking the State at its word that it believed federal law tied its hands, the State dramatically misapprehended its federal obligations, and the Constitution does not permit states to stumble into such excessively segregated election districts, whether through good faith or bad.”

Pildes, a widely recognized expert on the Voting Rights Act and a founder of the Law of Democracy field, will make his oral argument on November 12. “It’s a fascinating case at the intersection of the Voting Rights Act, the Constitution, the role of race in the design of political institutions, the relationship between racial and partisan considerations, and the design of democratic institutions,” he says. The case follows on the heels of another major Alabama voting rights decision, Shelby County v. Holder (2013), which dealt a serious blow to Section 5’s preclearance requirement for changes to voting laws and practices in jurisdictions with a history of racial discrimination in voting.

For Pildes, the constitutional question could hardly be more compelling: “When a public or private actor says, ‘We’re taking race-based action in order to comply with federal law,’ how solid does their case have to be that it is, in fact, necessary before they run into constitutional limits on the role of race and the design of public and private programs?”

Posted November 11, 2014