Alabama U.S. Congressional District 7 (since 2013). Image Credit: United States Department of the Interior / Wikipedia
The recent Supreme Court decision to allow Alabama’s proposed congressional districts to remain as written by the state legislature highlights the role of race in redistricting. To be clear, the court didn’t say these lines were legal; it merely said that they could be implemented pending an appeal. After a seven-day hearing and extensive briefing, a three-judge federal district court previously ruled that the map was an example of racial gerrymandering. This violated the Voting Rights Act. The court ordered Alabama to draw a new map before holding any elections for Congress, including the Democratic primary scheduled for May 24.
Most people think that it is normal for political districts to be redrawn every ten years, following the results of the decennial census. In fact, this has only been true since the 1960s. While Article I Section 2 of the U.S. Constitution requires that representatives “shall be apportioned among the several states” after each enumeration, it was left up to the states entitled to more than one representative to decide how to do this.
More than any other factor, party politics determined the outcome of redistricting before the 1960s. Members of Congress preferred stability. If a state gained a representative after a new apportionment, that state’s legislature often designated the “new” district as the entire state, leaving other districts intact. If a state lost a representative, existing district lines were retained as much as possible. For example, two districts would be merged to join an incumbent with an expected open seat; the same tactic might be used to exclude the least popular incumbent, or one from the state’s non-majority party. This also allowed state legislative districts to remain intact. As more people moved into towns and cities over the decades, voters who lived in rural districts gained considerable “representation” over those who lived in urban ones.
When urban voters challenged this outcome in court, judges dismissed such cases on the grounds that district lines were “political questions,” putting them outside the realm of legal adjudication. Grounded in the constitutional principle of separation of powers, this legal posture presumed that voters had the final say in all political questions—which they often didn’t.
That changed on March 26, 1962, when the Supreme Court issued its decision in Baker v. Carr. Tennessee had not altered the lines of its state assembly districts since 1901, even though its state constitution required it to do so. The court held that this violated the equal protection clause of the Fourteenth Amendment, and sent the case back to the federal district court to decide what to do.
While Baker v. Carr did not involve race, the decision had a precedent in Gomillion v. Lightfoot, which did. Tuskegee, Alabama was the county seat of Macon County. With a 1960 population of 26,717 that was 83.5 percent African American, it was the Blackest county in the country. As the home of the Tuskegee Institute and a VA hospital for Black veterans, Tuskegee had a large, well-educated Black elite, which lived in or around the city. This meant that African Americans were a much greater threat to white political control than in any other county.
At the time of the 1950 Census, the city of Tuskegee had a population of 6,712, of whom 80 percent were non-white. But the 1960 Census recorded only 1,750 persons living within the city limits, of whom only 24 percent were non-white. Why? What had changed was not the population but the city boundaries. On July 15, 1957, the Alabama legislature unanimously passed Special Act 140 that altered the city boundaries from a square to a 28-sided figure that resembled a sea dragon. With this gerrymander, Tuskegee went from a city with 5,397 African Americans to 424, and from 420 Black voters to ten. The 1,326 whites stayed within the city boundaries; over 600 were registered to vote.
The Tuskegee Civic Association (TCA) asked the federal district court to declare the new law unconstitutional and enjoin officials from enforcing it. Judge Frank Johnson dismissed the case, citing the political question doctrine. Johnson was sympathetic to the argument that the purpose and result of this law were to disfranchise from city elections a class of voters based on race, in violation of the Fourteenth and Fifteenth Amendments to the U.S. Constitution, but district boundaries were a legislative matter, he wrote, and the judicial branch could not interfere.
The Fifth Circuit affirmed his decision, but the Supreme Court did not. On November 14, 1960, a unanimous court held that a state’s power to set boundaries could not be “used as an instrument for circumventing a federally protected right.” Gomillion v. Lightfoot caused the court to take a hard look at a type of legislative decision that had heretofore been immune from judicial scrutiny. It sent the case back to Judge Johnson for a trial. Told that he had the proper authority, on February 17, 1961, Judge Johnson enjoined the defendants from changing Tuskegee’s boundaries. The former boundaries were restored but it was too late for the 1960 Census.
When Baker opened the door, prospective plaintiffs all over the country charged through. That very day a reapportionment suit was filed in Georgia. At that time, a majority of the 54 members of the state Senate could be elected by 21.4 percent of the 1960 population and a majority of the 205 members of the House could be elected by 22.5 percent. On May 25, 1962, the court ordered the legislature to reapportion at least one legislative body based on population. The following year, in another Georgia case, Justice William O. Douglas wrote, “The concept of political equality . . . can mean only one thing—one person, one vote.” The media and later courts changed this phrase to “one man, one vote.”
Over the next few years, the Supreme Court expanded its ruling to include virtually every decision-making body whose members were elected—congressional districts, both houses of the state legislatures, and local government bodies. While most of the cases to reach the Supreme Court originated in the South, where race was always a concern, these decisions reverberated throughout the country as 45 states faced the need to drastically change the size of their districts. Congress considered numerous bills and a constitutional amendment to void or at least postpone legislative redistricting. None passed.
Eventually, all legislatures conformed to the Supreme Court’s mandate that the only basis for representation was population. States where one party dominated the legislature gerrymandered to consolidate its position. In states with large minority populations that largely voted for one major party and whites the other, party gerrymandering became racial gerrymandering. This happened mostly in the South, and to a lesser extent in the southwestern states. Northern cities with significant residential segregation, like Chicago, also gerrymandered by race.
Those charged with drawing the lines used three techniques to achieve their goals: cracking, packing, and stacking. “Cracking” means dividing up minority populations (whether by race or by party) into several districts to minimize the impact of their vote on representation. “Packing” means putting as many as possible into one district: in this model, minorities get some representation, but not as much as their overall population might warrant. “Stacking” divides minority populations so that they are always a minority, if a significant one, in each district, diluting their vote but not making it irrelevant.
Apportionment based on the 1990 Census reduced Alabama’s representatives from eight to seven. Still in transition from a blue to a red state, the legislature used packing to favor the Republican Party by creating one overwhelmingly Black (and Democratic) district. Centered on Selma, the Seventh Congressional District (CD) joined the western “Black Belt” counties with the African American neighborhoods of Birmingham and Montgomery to create a district that was 63 percent Black. Macon County, in the eastern half of the Blackbelt, was stacked into the Third CD, where Black people were only a quarter of the population. In 1992, Alabama elected the first African American to Congress since Reconstruction. Since 2010, Alabama has elected one Black (female) Democrat, and seven white Republicans (including one woman.)
Other Southern States acted similarly. Thanks to the 1965 Voting Rights Act, each had some Black representation, but not equivalent to the proportion of African Americans in the state population. Georgia was an exception. Over time, Georgia has become a purple state. Its cities, especially Atlanta, attracted whites with more liberal views than the cities in other Southern States.
The Peach State voted for Biden in 2020 and elected two Democratic Senators in 2021. Of its fourteen representatives, six are Democrats. Five are Black, as is one senator. African Americans are 31.6 percent of Georgia’s population but constitute 35.7 percent of Georgia’s representatives and 50 percent of its senators. Needless to say, the state legislature is trying to limit ballot access to reverse Democratic gains.
Gerrymandering of one sort or another has been going on all over the country in states where a clearly dominant party gets the final say—at least before it is challenged in court. A year ago, NYU’s Brennan Center pointed out that “Republicans will have sole control over drawing congressional maps in eighteen states and legislative maps in twenty states, while Democrats will have sole control of congressional maps in seven states and legislative maps in nine states.”
New York is in the latter category. Reapportionment after the 2020 Census reduced New York’s representatives from 27 to 26. In 2021, nineteen of these were Democrats and eight were Republicans. When its non-partisan, appointed advisory commission deadlocked, the legislature proposed a new district map with twenty districts that lean Democratic, four that can be easily won by Republicans and only two that look competitive.
Whether a federal court will step in to block the New York partisan gerrymander remains to be seen. On June 27, 2019, the Supreme Court resurrected the political question doctrine, finding that it still applied to partisan gerrymandering. Racial gerrymandering, up to a point, is prohibited by the 1965 Voting Rights Act. States still cannot engage in practices which cause racial or language minorities to “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.”
In the recent Alabama case, the NAACP persuaded the federal district court that proper application of the Voting Rights Act required two congressional districts with a fair chance of electing Black Representatives. By dividing the Black Belt, Black residents in the slightly redrawn 7th CD would have 50.3 percent of the voting age population. A new second district would have a Black voting age population of 50.2 percent. The latter would contain Macon County, which, as of the 2020 Census, is 78.8 percent Black.
This raises the stakes for the 2022 election. The Constitution permits Congress to write rules for conducting elections. Currently, there are several proposals before Congress to do just that. Since Congress is closely divided, what happens in 2022 elections may determine what redistricting will look like after the 2030 Census.
Jo Freeman is a political scientist and a member in good standing of the New York state bar. Copyright © 2022 by Jo Freeman