The Supreme Court has made an utter mess of legislative redistricting, for many years. The court can’t seem to make up its mind if, or under what circumstances, the racial makeup of voters in legislative district can be, or should be, or sometimes must be, considered by the legislators drawing the districts. Black-majority districts must be drawn where possible — except when it’s not necessary. Certain percentages of black voting strength must be maintained — except where they are not allowed to be. There’s nothing consistent about the high court’s rulings except their inconsistency.

For years, legislators were told that not only must they try to create enough black-majority districts to provide a good chance for blacks to elect a proportion of representatives similar to the proportion of black voters in a state or jurisdiction, but that the size of each black majority must be large enough to virtually assure election of black candidates. If a district with, say, 65 percent black registration was changed, ten years later, to one with 60 percent black registration, well, that amounted to “retrogression” and thus was adjudged unconstitutional.

So Alabama’s Legislature took that to heart and designed districts that fit those rules. But now the high court says that in doing so, it might have diluted the power of black voters in too many other districts — and, thus, it sent the case (Alabama Legislative Black Caucus v. Alabamaback to a federal district court to re-examine, on a district by district basis, whether this is what happened, and whether the legislators impermissibly took race into account when drawing the district lines. (Because, as we’ve seen, it’s totally forbidden to take race into account, except where it’s mandatory to do so. Follow that logic!)

So, excuse the mild profanity, but it seems the Legislature is damned if it does and damned if it doesn’t draw lines in such a way as to create racially-influenced results.

This sort of legal reasoning makes sense only in… nowhere.

What it amounts to is certain justices molding their reasoning to their desired electoral results. To justify it, they use nothing other than sheer sophistry.

I think Alabama’s district lines are perfectly consonant with earlier court rulings. For the court to pretend consistency, in keeping open the possibility of throwing out some of the lines, is absurd.

On the other hand, I think the court’s earlier jurisprudence was completely wrong to start with. I agree with my friend and civil rights/voting rights expert J. Christian Adams that all of this hair-splitting of racial mandates and prohibitions and suggestions and restrictions is morally sickening and legally indefensible. And it is most certainly not required by a correct reading of the Voting Rights Act.

As another top constitutional scholar, Ronald Rotunda, told me, “Maybe blacks would like to vote for whomever they want, without regard to color, but the courts won’t give them a chance.”

Gee, what a novel idea: Stop looking at everything through a racial lens! Who would have ever thought of that?

Well, some of us actually believe (to paraphrase an earlier ruling by Chief Justice John Roberts) that the way to stop dividing us by race is to stop dividing us by race.

In sum, I do not necessarily disagree with the ultimate direction indicated by this week’s high court decision — which seems to move back to disfavoring racial gerrymandering — even though the majority’s reasoning (as very well explained by dissenting Justices Scalia and Thomas) is utterly convoluted tommyrot.

Sometimes a badly reasoned decision can reach the right overall result (as in Brown v. Board of Education, because government-mandated racial separation is unconstitutional, even if the high court blew the explanation of why). And sometimes a bad decision, badly reasoned, can help lead, stumblingly, to legal and moral sanity. If Black Caucus v. Alabama ends up leading to a situation where race is immaterial in drawing district lines (and where legislators taking race into account in either direction, for any reason, is verboten), then this week’s tommyrot could somehow lead back to the right constitutional principles, despite itself.

We’ll see….

— by Quin Hillyer, exclusively here at


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