Richard Pildes, Sudler Family Professor of Constitutional Law, has thought deeply about the constitutionally appropriate role of race in redistricting for more than 20 years. His analytically rigorous scholarship, cited by the Supreme Court in 10 voting rights cases between 1995 and 2009, has frequently incorporated empirical data to advance a larger theme—namely, that the Court’s doctrine on the use of race under the Voting Rights Act of 1965 (VRA) should be adapted to reflect changing racial realities. In November 2014, Pildes put his scholarship to the test to make his winning Supreme Court oral argument in Alabama Legislative Black Caucus v. Alabama.

In 2012, Alabama’s newly ascendant Republican legislative majority enacted a redistricting plan. A census two years earlier had revealed that each of Alabama’s 35 black-majority districts were underpopulated. Alabama sought to address the issue by redrawing its district boundaries so that the percentage of black residents in black-majority districts either stayed level or increased. Black lawmakers and black voting rights organizations protested the results, however: Under the plan, nearly 20 percent of the black residents living in white-majority districts were moved into super-concentrated black districts, while nine of the 13 districts boasting interracial political coalitions were eliminated. The effect was to segregate voters even further by race and to hinder the formation of coalitions across racial lines.

When black leaders filed suit, the Alabama State Legislature asserted that Section 5 of the VRA prohibited it from adopting district lines that significantly decreased black population percentages in black-majority districts. After a three-judge district panel ruled in favor of the state, the Alabama Legislative Black Caucus, the Alabama Democratic Conference (ADC), and other plaintiffs appealed. Pildes, leading the ADC legal team, was invited to brief and argue the case.

Pildes had predicted what it would take to win a case such as this. In the wake of the Court’s 2013 decision in Shelby County v. Holder to strike down the VRA’s nearly 40-year-old formula for determining the jurisdictions that need federal preclearance of voting law changes, Pildes wrote on the popular SCOTUSblog that “the essential question at stake” to “the Court’s pivotal actor, Justice [Anthony] Kennedy,” is “whether our political system is frozen in place on issues concerning race. Do our political institutions and culture have the capacity to recognize that dramatic changes at the intersection of race and voting have taken place over recent decades?” Alabama’s redistricting plan, which imported district racial characteristics from one decade to the next, did not reflect that progress.

Pildes’ winning arguments drew upon prior Supreme Court decisions like Miller v. Johnson in 1995 and Bush v. Vera in 1996 that expressed reservations with the formulaic application of racial targets. “Alabama employed rigid racial quotas,” Pildes told the Court during oral argument. “Racial quotas in the context of districting are a dangerous business.” Miller and Bush, as well as more recent decisions, employed a notion to explain the constitutional injury suffered by victims of racial gerrymandering first conceived by Pildes and Richard Niemi of the University of Rochester in a 1993 Michigan Law Review article. An “expressive harm,” Pildes and Niemi wrote in “Expressive Harms, ‘Bizarre Districts,’ and Voting Rights,” is one that “results from the idea or attitudes expressed through a governmental action, rather than from the more tangible or material consequences the action brings about.”

Furthermore, Alabama’s redistricting policy required “a legitimate or reasoned justification,” Pildes wrote in his brief to the Court. “Compliance with the imagined requirements” of Section 5 “cannot provide that justification.” What Section 5 actually requires is a detailed projection of how election districts are likely to perform in the new plan—the opposite of Alabama’s “fixed demographic” approach. A “highly specific, functional analysis” was exactly what Pildes called for in “Is Voting-Rights Law Now at War with Itself?” That 2002 North Carolina Law Review article proposed to allow states flexibility in satisfying Section 5 if evidence suggested that replacing safe black districts with “crossover” districts (with nonblack majorities) might also elect black voters’ candidate of choice.

The Court explicitly endorsed Pildes’ article in Georgia v. Ashcroft in 2003, ruling in favor of Georgia’s majority-Democratic legislature, which passed a redistricting plan modestly unpacking black voters from black-majority districts in order to create a larger number of competitive Democratic districts. Importantly, even the four-Justice dissent in Georgia agreed with the majority that “mere reductions in [black population percentages] are not in themselves” prohibited by Section 5—a holding clearly at odds with Alabama’s stated rationale for its 2012 district plan.

On March 25, 2015, Pildes won a 5-to-4 decision, with Justice Kennedy plus Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor agreeing that the VRA does not require separating voters by race into election districts when current conditions no longer make that necessary to ensure an equal opportunity to participate in the political process. The Court remanded the case so that the lower courts could apply this correct understanding of the Act to all of Alabama’s election districts.

The Court’s opinion was a personal triumph for Pildes for an additional reason, notes Professor Nathaniel Persily, a voting rights expert at Stanford Law School. "Pildes also achieved the unique distinction of not only winning over the majority, but also having his work cited by one of the dissenters [Justice Clarence Thomas]. It is a testament to his influence, and the trust the Justices, of different political and jurisprudential persuasions, place in him.”

This case "might have been the harbinger of the end of the Voting Rights Act as we know it," says Professor Justin Levitt of Loyola Law School, former counsel at the Brennan Center for Justice. "Instead, the Court unmistakably supported the contextual and nuanced assessment of race and politics that justice demands, and vigorously affirmed the place of the Voting Rights Act in that assessment. Pildes won the first Supreme Court racial gerrymandering case on behalf of African-American voters in 55 years, and in so doing, ensured that jurisdictions could not misuse legal protections for minority communities for their own political ends.”

Posted April 28, 2015