Two cases involving House of Representatives election redistricting under the Voting Rights Acts (VRA) are pending at the Supreme Court. Both were argued the same day. George W. Bush appointee Samuel Alito took an active role questioning attorneys who opposed the redistricting schemes. In one case, he stretched prior Supreme Court rulings in such a way as to suggest that attempting to comply with the VRA violates the VRA.
Under prior cases, redistricting may take into account racial gerrymandering as long as it does not “predominate” over other factors. Legislatures are permitted to consider race, but race may not be the main consideration. With this in mind, Samuel Alito asks these questions on pages 7 and 8 [PDF]:
What if the legislature says, look, we want to follow all the traditional districting, applying all the traditional redistricting factors. However, one thing we absolutely do not want is to be held to have violated Section 5 or Section 2 of the Voting Rights Act. So we have these 12 majority-African-American districts, and we don’t want to do anything to them that results in liability under the Voting Rights Act.
Is that predominance?
After the attorney attempts to respond, Samuel Alito rewords the question and asks again.
If the State says, the one thing we absolutely do not want is to be found to violate the — the Voting Rights Act, that is not — that — that is not necessarily predominance, in your view?
This question assumes that any consideration of whether race predominates makes race automatically predominate. Samuel Alito was the only Justice who made this assumption. He did not explain how race would necessarily predominate in every case.
Normally, people consider prohibitions in law to avoid breaking law. The whole point of writing laws is to provide notice so that people know what is not allowed. Samuel Alito suggests the opposite — that trying to make sure the law is not violated is a violation of the law. Here is the logic:
Given: If race predominates (P) in redistricting, then we violate the VRA.
If P, then Not VRA
Samuel Alito Claim: If we try to comply with the law by determining that race (R) does not predominate, then race predominates (P). Considering whether race predominates implies than race predominates.
If R, then P
Therefore, if we consider race (R) under the terms of the VRA, then we violate VRA.
If R, then Not VRA
But VRA considers whether race predominates … If VRA, then Not VRA?
If we try to avoid violating the VRA by respecting its prohibition against racial predominance, then we violate the VRA. Two opposite things cannot be true at the same time. We cannot both respect and violate the VRA — so either the VRA has to go, or Samuel Alito’s unsupported claim has to go.