Argued: November 12, 2014????Decided: March 25, 2015
Appellants–Alabama Legislative Black Caucus (Caucus), Alabama Democratic Conference (Conference), and others–claim that Alabama’s new district boundaries create a “racial gerrymander” in violation of the Fourteenth Amendment’s Equal Protection Clause. After a bench trial, the three-judge District Court ruled (2 to 1) for the State. It recognized that electoral districting violates the Equal Protection Clause when race is the “predominant” consideration in deciding “to place a significant number of voters within or without a particular district,” Miller v. Johnson, 515 U.?S. 900, 913, 916, and the use of race is not “narrowly tailored to serve a compelling state interest,” Shaw v. Hunt, 517 U.?S. 899, 902 (Shaw II).
In ruling against appellants, it made four critical determinations: (1) that both appellants had argued “that the Acts as a whole constitute racial gerrymanders,” and that the Conference had also argued that the State had racially gerrymandered Senate Districts 7, 11, 22, and 26; (2) that the Conference lacked standing to make its racial gerrymandering claims; (3) that, in any event, appellants’ claims must fail because race “was not the predominant motivating factor” in making the redistricting decisions; and (4) that, even were it wrong about standing and predominance, these claims must fail because any predominant use of race was “narrowly tailored” to serve a “compelling state interest” in avoiding retrogression under ?5.
1.?The District Court’s analysis of the racial gerrymandering claim as referring to the State “as a whole,” rather than district-by-district, was legally erroneous. Pp.?5-12.
(a)?This Court has consistently described a claim of racial gerrymandering as a claim that race was improperly used in the drawing of the boundaries of one or more specific electoral districts, see, e.g., Shaw v. Reno, 509 U.?S. 630, 649 (Shaw I), and has described the plaintiff’s evidentiary burden similarly, see Miller, supra, at 916. The Court’s district-specific language makes sense in light of the personal nature of the harms that underlie a racial gerrymandering claim, see Bush v. Vera, 517 U.?S. 952, 957; Shaw I, supra, at 648. Pp.?5-6.
(b)?The District Court found the fact that racial criteria had not predominated in the drawing of some Alabama districts sufficient to defeat a claim of racial gerrymandering with respect to the State as an undifferentiated whole. But a showing that race-based criteria did not significantly affect the drawing of some Alabama districts would have done little to defeat a claim that race-based criteria predominantly affected the drawing of other Alabama districts. Thus, the District Court’s undifferentiated statewide analysis is insufficient, and the District Court must on remand consider racial gerrymandering with respect to the individual districts challenged by appellants. Pp.?7-8.
(c)?The Caucus and the Conference did not waive the right to further consideration of a district-by-district analysis. The record indicates that plaintiffs’ evidence and arguments embody the claim that individual majority-minority districts were racially gerrymandered, and those are the districts that the District Court must reconsider. Although plaintiffs relied heavily upon statewide evidence to prove that race predominated in the drawing of individual district lines, neither the use of statewide evidence nor the effort to show widespread effect can transform a racial gerrymandering claim about a set of individual districts into a separate, general claim that the legislature racially gerrymandered the State “as” an undifferentiated “whole.” Pp.?8-12.
2.?The District Court also erred in deciding, sua?sponte, that the Conference lacked standing. It believed that the “record” did “not clearly identify the districts in which the individual members of the [Conference] reside.” But the Conference’s post-trial brief and the testimony of a Conference representative support an inference that the organization has members in all of the majority-minority districts, which is sufficient to meet the Conference’s burden of establishing standing. At the very least, the Conference reasonably believed that, in the absence of a state challenge or a court request for more detailed information, it need not provide additional information such as a specific membership list. While the District Court had an independent obligation to confirm its jurisdiction, in these circumstances elementary principles of procedural fairness required the District Court, rather than acting sua?sponte, to give the Conference an opportunity to provide evidence of member residence. On remand, the District Court should permit the Conference to file its membership list and the State to respond, as appropriate. Pp.?12-15.
3.?The District Court also did not properly calculate “predominance” in its alternative holding that “[r]ace was not the predominant motivating factor” in the creation of any of the challenged districts. It reached its conclusion in part because it placed in the balance, among other nonracial factors, legislative efforts to create districts of approximately equal population. An equal population goal, however, is not one of the “traditional” factors to be weighed against the use of race to determine whether race “predominates,” see Miller, supra, at 916. Rather, it is part of the redistricting background, taken as a given, when determining whether race, or other factors, predominate in a legislator’s determination as to how equal population objectives will be met. Had the District Court not taken a contrary view of the law, its “predominance” conclusions, including those concerning the four districts that the Conference specifically challenged, might well have been different. For example, there is strong, perhaps overwhelming, evidence that race did predominate as a factor when the legislature drew the boundaries of Senate District 26. Pp.?15-19.
4.?The District Court’s final alternative holding–that “the [challenged] Districts would satisfy strict scrutiny”–rests upon a misperception of the law. Section 5 does not require a covered jurisdiction to maintain a particular numerical minority percentage. It requires the jurisdiction to maintain a minority’s ability to elect a preferred candidate of choice. Pp.?19-23.
(a)?The statute’s language, 52 U.?S.?C. ??10304(b), (d), and Department of Justice Guidelines make clear that ?5 is satisfied if minority voters retain the ability to elect their preferred candidates. The history of ?5 further supports this view, as Congress adopted the language in ?5 to reject this Court’s decision in Georgia v. Ashcroft, 539 U.?S. 461, and to accept the views of Justice Souter’s dissent–that, in a ?5 retrogression case, courts should ask whether a new voting provision would likely deprive minority voters of their ability to elect a candidate of their choice, and that courts should not mechanically rely upon numerical percentages but should take account of all significant circumstances, id., at 493, 498, 505, 509. Here, both the District Court and the legislature relied heavily upon a mechanically numerical view as to what counts as forbidden retrogression. Pp.?19-22.
(b)?In saying this, this Court does not insist that a state legislature, when redistricting, determine precisely what percent minority population ?5 demands. A court’s analysis of the narrow tailoring requirement insists only that the legislature have a “strong basis in evidence” in support of the (race-based) choice that it has made. Brief for United States as Amicus Curiae 29. Here, however, the District Court and the legislature both asked the wrong question with respect to narrow tailoring. They asked how to maintain the present minority percentages in majority-minority districts, instead of asking the extent to which they must preserve existing minority percentages in order to maintain the minority’s present ability to elect the candidate of its choice. Because asking the wrong question may well have led to the wrong answer, the Court cannot accept the District Court’s conclusion. Pp.?22-23.
989 F.?Supp. 2d 1227, vacated and remanded.
BREYER, J., delivered the opinion of the Court, in which KENNEDY, GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. SCALIA, J., filed a dissenting opinion, in which ROBERTS, C.?J., and THOMAS and ALITO, JJ., joined. THOMAS, J., filed a dissenting opinion.