New York Times

WASHINGTON — The Supreme Court on Wednesday wrestled with the role race may play in drawing legislative maps.

The issue was an old one, but the case had a novel twist: Wednesday’s challenge came from black and Democratic lawmakers in Alabama who said the State Legislature had relied too heavily on race in its 2012 state redistricting by maintaining high concentrations of black voters in some districts.

Justice Antonin Scalia said things have changed in how voting rights cases are litigated.

“You realize, I assume, that you’re making the argument that the opponents of black plaintiffs used to make here,” he told Richard Pildes, a lawyer for one set of challengers.

The problem with the Alabama districts, Mr. Pildes said, was that the Republican-controlled Legislature had used “rigid racial quotas” in drawing district lines.

“Racial quotas in the context of districting are a dangerous business,” he said. “They can be a way of giving minorities faced with racially polarized voting a fair opportunity to elect, but they can also be a way of unnecessarily packing voters by race in ways that further polarize and isolate us by race.”

Chief Justice John G. Roberts Jr. said Mr. Pildes’s approach would force lawmakers drawing legislative maps to make an impossible choice.

“They have to hit this sweet spot between those two extremes without taking race predominantly into consideration?” he asked.

Justice Samuel A. Alito Jr. made a similar point.

“Listening to your argument,” he told Mr. Pildes, “it sounds to me that you are just as interested in quotas. You’re just interested in lower quotas.”

Andrew L. Brasher, Alabama’s solicitor general, said the new maps were unexceptional.

“The plan that we passed is a status quo plan,” he said. “The whole point of this plan was to preserve the status quo because the Republican Party had won a majority in the Legislature for the first time in 130 years.”

He added that about 25 percent of the voting age population in Alabama is black, and that there is a similar percentage of legislative districts in which blacks are in the majority.

State officials said they had to maintain high concentrations of black voters to comply with Section 5 of the federal Voting Rights Act, which they said barred any diminution of the black population in particular districts. The Supreme Court effectively struck down Section 5 in 2013.

Justice Elena Kagan said state lawmakers had misunderstood the federal law.

“In no interpretation” of Section 5, she said, “does a 76 percent district have to stay a 76 percent district when circumstances change and when the ability to elect candidates of one’s choice does not require it.”

Justice Anthony M. Kennedy returned repeatedly to a puzzle: How to disentangle the roles of race and partisanship when black voters in Alabama overwhelmingly vote for Democrats. The difference matters because the Supreme Court has said that only racial gerrymandering is constitutionally suspect.

The 2012 maps were challenged by the Alabama Legislative Black Caucus, the Alabama Democratic Conference and other plaintiffs. They said Republican state legislators had engaged in “racial gerrymandering” by paying too much attention to making districts almost identical in population and by making sure that substantial black majorities in existing districts were not even slightly diminished.

A divided three-judge Federal District Court panel last year ruled that the redistricting plan was lawful. Judge William H. Pryor Jr., writing for the majority, said that black voters in Alabama were politically active and had been successful in electing their favored candidates.

In dissent, Judge Myron H. Thompson said “there is a cruel irony to these cases” in light of the Supreme Court’s 2013 decision.

“Even as it was asking the Supreme Court to strike down” part of theVoting Rights Act, Judge Thompson wrote, “the state of Alabama was relying on racial quotas with absolutely no evidence that they had anything to do with current conditions, and seeking to justify those quotas with the very provision it was helping to render inert.”

The Supreme Court heard two consolidated cases on Wednesday in two cases, Alabama Legislative Black Caucus v. Alabama, No. 13-895, and Alabama Democratic Conference v. Alabama, No. 13-1138.

Solicitor General Donald B. Verrilli Jr., representing the federal government, offered the challengers limited support. He urged the Supreme Court to return the case to a lower court to consider whether there were problems with individual districts rather than the entire state.

Both Mr. Pildes and a lawyer for a second set of challengers, Eric Schnapper, resisted the suggestion. They said their challenges were to a statewide policy that affected every district.

Some of the justices asked what would happen if Alabama were required to draw new maps now that the protections of Section 5 of the Voting Rights Act have been lifted.

Justice Alito suggested that Alabama Republicans could do even better than they had in 2012. “If on a do-over, the objective was to produce maximum Republican representation in both houses of the Legislature,” he said, it might not violate what remains of the Voting Rights Act if “there was a drastic reduction in the number of African-American senators and representatives.”

Chief Justice Roberts asked Mr. Verrilli if he was concerned that his position could lead to redistricting “that would not be subject to Section 5.”

“It is what it is,” Mr. Verrilli said.