The Supreme Court’s decision in Allen v. Milligan last week, all but mandating that Alabama create a second majority-black district in its seven-member congressional plan, smacks of a discredited theory put forth in the 1990s round of redistricting .

At that time, the Department of Justice, then in the hands of the Republican administration of George H. W. Bush, pushed aggressively for the creation of majority-black districts where possible. The theory, known as "max black," was that the creation of such districts would create parallel opportunities for Republicans. Its use led to the Supreme Court’s recognition of racial gerrymandering claims. For North Carolina, the DOJ said that the North Carolina General Assembly could have created a second majority-black congressional district "to give effect to black and Native American voting strength" in one part of the state using boundary lines that were "no more irregular than [those] found elsewhere in the proposed plan." In Georgia, the DOJ twice refused to pre-clear Georgia’s congressional plan, which created two majority-black districts, demanding that Georgia create a third majority-black congressional district. The Supreme Court first held that racial gerrymandering claims could be pursued.

Next, the court held that majority-black districts in North Carolina and Georgia, which were both the product of DOJ meddling, were unconstitutional racial gerrymanders. That was because the plan drafters put race ahead of other generally applicable, race-neutral districting considerations. And in the Georgia decision, the court affirmed a lower-court judgment that was critical of the "max black" scheme. Now, the Supreme Court’s decision means that Alabama must try to create a second majority-black district in its seven-member congressional plan. That ruling suggests a return to the "max black" approach.

The total population of Alabama is 27.16% black, and the voting age pollution is only 25.9% black. The creation of a second majority-black district stretches those reliable Democratic voters out, perhaps farther than can reasonably be expected to work politically. Taking a step back, in a 1986 decision, the Supreme Court laid out the criteria for identifying when a majority-minority district should be drawn. The first criterion is population-based — the minority population must be sufficiently large and geographically compact to be a majority in a single-member district. That presents problems enough. As now Judge Andrew Brasher of the U.S. Court of Appeals for the 11th Circuit observed, the practice of redistricting involves the search for a "Goldilocks point." That’s the place where race has been considered just enough and neither too much, which is bad, nor too little, which can be equally bad for a different reason. Or as the Supreme Court has claimed, it is "sensitive" to putting states "between the competing hazards of liability" imposed by the equal protection clause and the Voting Rights Act.

The rub is that those doing the work of redistricting don’t know whether they have found the Goldilocks point until a federal court second-guesses their work, saying they have or haven’t as the case may be. The 1986 decision calling for the creation of minority-majority districts precedes the rejection of those drawn with a "max black" objective, so it is necessarily modified by them and their related understanding of the equal protection clause. And Alabama has understood for years that while two black-majority districts can be drawn in an eight-member State Board of Education plan without unconstitutional racial gerrymandering, it cannot be done in a seven-member plan.

After all, other than race, what do people at one end of the state on Mobile Bay have in common with people at the other end on the Chattahoochee River, which forms the border with Georgia? And is it constitutionally OK to reach into the city of Mobile to capture only majority-black neighborhoods? If that’s not racial gerrymandering, nothing is.

Section two of the Voting Rights Act says that "[n]othing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population." But such proportionality contrary to the statutory text is about the only thing in favor of the court decision. In his dissent, Justice Samuel Alito concludes: "If a private plaintiff can demonstrate §2 liability based on the production of a map that the State has every reason to believe it could not constitutionally draw, we have left 'state legislatures too little breathing room' and virtually guaranteed that they will be on the losing end of a federal court’s judgment." Giving the states no protection from such claims is no way to treat them.

Jack Park is a veteran litigator and consultant on voting rights cases.