The U.S. Supreme Court, which twice in the last decade has struck down or neutered provisions of the landmark 1965 Voting Rights Act, may well be poised to do it again. On Tuesday the conservative court heard arguments in a case that could further decimate the law, passed in 1965, and twice renewed by Congress to protect racial minorities from discrimination in voting.
At issue in Tuesday’s case was Alabama’s congressional redistricting plan, adopted by the Republican state legislature after the 2020 Census. More than a quarter of the state’s population is African American, but in only 1 of 7 districts do minority voters have a realistic chance of electing the candidate of their choice. In January, a three-judge federal court panel that included two Trump appointees ruled unanimously that under the Voting Rights Act, Alabama should create not just one, but two compact congressional districts with a majority or close to a majority of Black voters.
The state appealed to the Supreme Court, where on Tuesday Alabama Solicitor General Edmund LaCour, Jr. contended that unless there is evidence of intentional race discrimination, congressional districts must be drawn without considerations of race.
‘What’s left?’
Justice Elena Kagan interrupted this line of argument, observing, “We once long ago said that intent was required … and Congress immediately slapped us down and said no, we didn’t mean that.”
Indeed Congress amended the Voting Rights Act in 1982 to make clear that the voting rights law was aimed at eliminating discriminatory results, whether or not there was intentional discrimination. In short, for example, the law is aimed at preventing practices that have the effect of diluting the political power of minority voters by lumping them into a single district with a super-majority of Black voters and then spreading the remaining minority voters out over the other districts. It’s known as packing and cracking, and it is what the lower court found had occurred in Alabama.
Kagan noted that Tuesday’s case is the third in a trilogy of cases in which the conservative court majority has all but gutted the Voting Rights Act. The Alabama redistricting plan, she said, is a “classic voter dilution claim,” and, she told Alabama’s lawyer, “You’re asking us essentially to cut back substantially on our forty years of precedent and to make this too extremely difficult to prevail on. So, what’s left?”
Justice Ketanji Brown Jackson pointed to the history of the Fourteenth and Fifteenth Amendments enacted after the Civil War to guarantee political power to formerly enslaved people. “When I drilled down to that level of analysis, it became clear to me that the framers themselves adopted the Equal Protection Clause … in a race-conscious way,” she said. “I don’t think that the historical record establishes that the founders believed that race neutrality or race blindness was required.”
But Alabama’s LaCour stuck to his guns, arguing that the lower court decision requiring the creation of a second majority-Black district is unconstitutional because race was the predominant factor in its creation. In contrast, he argued, the state legislature’s original map, with only one majority-Black district, is “race-neutral.”
The rebuttal
Rebutting that argument was Deuel Ross, senior counsel for the NAACP Legal Defense Fund, who cited the factual findings of the lower court.
“There is nothing race-neutral about Alabama’s map,” he said. “The Black Belt is a historic and extremely poor community of substantial significance. Yet Alabama’s map cracks that community and allows white block voting to deny Black voters the opportunity to elect representation responsive to their needs.
Where Alabama’s LaCour argued that the creation of the second district would break up the Gulf Coast part of the state into two dissimilar districts, the NAACP’s lawyer countered that the legislature had no difficulty in simultaneously creating essentially the same two districts for the state school board.
For the most part, the court’s three liberals dominated Tuesday’s argument. The six conservatives didn’t tip their hands, though they likely do have a hand to play. They probably won’t adopt the state’s relatively extreme position that provisions of the Voting Rights Act require racial neutrality–provisions which, after all, were written to ensure greater political power for long-suppressed racial minorities. But as election expert Rick Hasen observes, Alabama may well get something “almost as good.” Namely, “a new legal framework that makes it much harder for minority plaintiffs to get full representation in congressional and other legislative districts.”
A decision in the case is expected later in the term.
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