Voting rights advocates welcomed a Supreme Court win. But the fight isn't over

The Supreme Court’s Alabama ruling hints at potential next fights

An unusual group of justices — including Chief Justice John Roberts and Justice Brett Kavanaugh, both conservative, and the court’s three liberal justices — formed the slim 5-4 majority that upheld the Supreme Court’s past rulings on Section 2 of the Voting Rights Act.

A close read of their opinion for the Alabama case known as Allen v. Milligan, however, shows cracks in the coalition that could lead to Section 2’s demise, says Spencer Overton, a professor at George Washington University Law School, who served in the Justice Department during the Obama administration.

“We’re just a vote away,” warns Overton, pointing to Roberts and Kavanaugh not joining a section of the majority opinion that talks about how much of a role race should play in the redistricting process.

“This notion of backing away from that one section might be giving themselves room in future opinions to go a different way,” Overton adds.

Kavanaugh also wrote a concurring opinion that highlights an argument by Justice Clarence Thomas that under the Constitution, Congress cannot allow race-based redistricting to go on without any time limits.

“But Alabama did not raise that temporal argument in this Court,” Kavanaugh noted, “and I therefore would not consider it at this time.”

To Luis Fuentes-Rohwer, a professor at Indiana University Maurer School of Law who has written about the decline of the Voting Rights Act, Kavanaugh is sending a signal that Alabama “didn’t raise the specific question he wanted raised about the temporal nature of Section 2 — could we do this forever?”

“That’s the way he wants the case presented to him,” Fuentes-Rohwer says. “That will happen soon enough.”

What many court watchers had expected to happen this term was the conservative justices dealing another blow to the Voting Rights Act, which has been undergoing a kind of death by a thousand cuts over the past decade.

The court’s 2013 ruling in Shelby County v. Holder, written by Roberts, effectively got rid of requirements for certain states and counties with a history of racial discrimination to get “preclearance” approval from the Justice Department before making any changes to election rules. Since then, a pair of decisions — in Abbott v. Perez and Brnovich v. Democratic National Committee — have made it more difficult to use Section 2 to challenge racial discrimination in the election process.

But for this Alabama case, the court left Section 2 intact.

“There could be a genuine change of heart in terms of the importance of protecting minority voting rights,” says Overton about Roberts and Kavanaugh ruling to uphold Section 2. “Or there may be this feeling that, ‘Hey, credibility of the institution is important. We’re going to appear political if we consistently side against communities of color. And so let’s just faithfully apply precedent here and have a big ideological battle on a different day.’ “

There’s already a legal fight over who can sue under Section 2

While the court upheld Section 2, it may soon rule on who has a right to sue to enforce the provision.

That legal fight is brewing in the lower courts and is expected to eventually reach the Supreme Court after a ruling by the 8th U.S. Circuit Court of Appeals.

The redistricting case, known as Arkansas State Conference NAACP v. Arkansas Board of Apportionment, could ultimately end the longstanding practice of private individuals and groups, who do not represent the U.S. government, bringing the majority of Section 2 lawsuits.

“This idea that there is no private right of action flies in the face of what has been occurring over the last 40 years,” says Gilda Daniels, a professor at the University of Baltimore School of Law, who served as a deputy chief in the voting section of the Justice Department’s Civil Rights Division during the Clinton and George W. Bush administrations.

For voting rights attorneys like Jacqueline De León of the Native American Rights Fund — which has been representing the Turtle Mountain Band of Chippewa Indians, the Spirit Lake Tribe and a group of Native American voters in a Section 2 case about North Dakota’s state legislative districts — the outcome of this Arkansas case could have devastating consequences.

“The private right of action is core to the Voting Rights Act,” says De León, an enrolled member of the Isleta Pueblo. “The fact that it would be questioned shows that there are extremist approaches being taken to dismantle the Voting Rights Act.”

Is there a need for “race-neutral” alternatives?

While the court may have left race-conscious Voting Rights Act protections under Section 2 standing for now, Overton of George Washington University is not optimistic about their future, given the chief justice’s skepticism of the law.

As a special assistant to the U.S. attorney general during the Reagan administration, Roberts wrote multiple memos against the “effects test” that Congress ultimately introduced to Section 2 in 1982. Months after joining the high court, Roberts wrote in an opinion for a 2006 redistricting case about Latino voters in Texas: “It is a sordid business, this divvying us up by race.”

“I don’t trust that this court is going to be reliable and consistent in terms of protecting voting rights, and as a result, those who are concerned about voting rights need to diversify, not put all the eggs in one basket,” Overton says, adding that “race-neutral” approaches, such as multi-member legislative districts that can be difficult to gerrymander, may be needed alongside updating the Voting Rights Act’s preclearance formula that the Supreme Court struck down in Shelby County.

Evan Milligan, the lead plaintiff in the Alabama case, is also thinking beyond lawsuits.

“This is not going to be a one-and-done thing,” says Milligan, who is the executive director of Alabama Forward, a network of Alabama-based advocacy organizations focused on civic engagement.

“We need to think about not only how to get federal voting rights legislation passed, but we need those things at state levels,” he adds. “We also need to be thinking about why we don’t have an amendment in our Constitution that explicitly recognizes the right of all U.S. citizens of voting age to vote and have their vote counted. Why is that not explicitly defined?”

Milligan admits those are complicated questions.

But in the fight for voting rights, he says, there are no overnight victories.

Edited by Benjamin Swasey