This term, the Supreme Court is hearing a case about whether recently drawn congressional maps of Alabama violated Section 2 of the Voting Rights Act of 1965, which prohibits voting practices or procedures that discriminate on the basis of race. In a state of seven districts, the new maps included just one majority black district even though the state has a population that is more than a quarter black. The groups that defy the maps say that because it would be relatively easy to draw a map with two majority black districts, the state is legally required to do so. But Alabama Republicans responded arguing that they are not required to use the plaintiffs’ maps, because creating a second majority black district would violate other criteria of racial neutrality used in redistricting.
The justices’ ruling could have implications far beyond Alabama, potentially neutralizing what remains of the Voting Rights Act, a critical piece of legislation that is ostensibly permanent but constantly in jeopardy.
The current Supreme Court justices, under Chief Justice John Roberts, could deliver the final blow to the Voting Rights Act, either in this case or in a future one. But they did not strike the first blow. According to a FiveThirtyEight analysis of Supreme Court cases related to the Voting Rights Act, most of the first 20 years of decisions interpreting the law went in a liberal direction. That changed in the late 1980s, when more right-leaning judges joined the court and, not coincidentally, more and more decisions in general began to go in a conservative direction. Of the seven Voting Rights Act cases the court has heard in the Roberts era, only one had a liberal outcome. “Starting in the 1990s, when the composition of the court changed, the court has been cutting or refusing to expand Section 2 in virtually every case it has had,” he said. Richard H Pildesprofessor of constitutional law at New York University.
Now, the Roberts court may be poised to continue that trajectory by fundamentally altering how Section 2 operates. So far, the court has taken the perspective that, to comply with the law, states are required in some situations to take race into account as the main factor in the redistricting process. alabama republicans now they are arguing that it is discriminatory to prioritize race over other traditional redistricting techniques, such as having compact districts, contiguous boundaries, or avoiding crossing county or city lines. Several experts, including Pildes, told FiveThirtyEight that a ruling siding with Alabama would be a radical departure from previous interpretations of the law and would likely free states to draw congressional or state legislative maps where minority voters have fewer political power relative to their numbers.
In that sense, the result of this case could be very similar to the a sentence from 2013 in which the Roberts court gutted another section of the Voting Rights Act, freeing up a group of states with histories of discriminating against minority voters to change their election laws without federal approval. In subsequent years, those states thousands of polling places closed, intensified their voter purges other voting laws changed in other ways that disproportionately affect minority voters.
When it was passed in 1965, two crucial sections of the Voting Rights Act, Section 2 and Section 5, addressed the issue of race-based voter suppression. Section 5 was proactivetrying to stop discrimination before it happens by requiring states with a history of discrimination to make changes to their election laws by the federal government in a process known as “prior authorization.”
Section 2, on the other hand, was designed to handle discrimination after It occurred. It functions as an enforcement mechanism for the Fifteenth Amendment, which states that the right to vote cannot be denied or limited on the basis of race. Effectively, it gave minority voters another avenue to bring voter suppression claims to court. Crucially, that applies to the redistricting process since it prohibited states from drawing district lines in a way that diluted the votes of racial minorities. According to Jesse Rhodes, a political science professor at the University of Massachusetts, Amherst, who has written about the history of the Voting Rights Act, the law was designed to provide “equal opportunity for [minority voters] elect candidates who represent them and exercise power in proportion to their numbers.
In recent decades, Section 2 has been used primarily as a weapon against a practice known as race rigging, in which legislators apportion minority voters across state and federal legislative districts, or group them into districts, a way that makes it impossible for those voting groups to elect the candidates of their choice. (We previously reported on how Section 2 reshaped North Carolina as part of “The Gerrymandering Project.”) In many ways, the Alabama case is a textbook example, according to Franita Tolson, professor of electoral law at the University of Southern California. “A decade ago, we would have said this is a clear violation of Section 2,” Tolson said. “African Americans did not get the number of seats to which they were entitled. Very easy. The panel of lower court judges that heard the case earlier this year, which included two Trump appointees, agreed.
But several pundits, including Tolson, told me they don’t expect the Supreme Court’s vast conservative majority to adopt this tactic. That’s because the court has become increasingly hostile to the Voting Rights Act in recent decades. The timing is not a coincidence. Roberts, who has been Chief Justice since 2005, has been critical of the law — and Section 2 — since he was a young government attorney in the 1980s.
But it goes beyond Roberts. In February, five of the Conservatives voted to restore Alabama’s congressional map, the one with only one majority-black district, for the 2022 election after the lower court panel overturned the map. Roberts dissented, saying that the judges of first instance had correctly applied the law. But he added that previous Supreme Court cases “have reduced considerable disagreement and uncertainty regarding the nature and contours of a vote dilution claim,” suggesting that he may be open to rethinking the scope of Section 2. .
Since Roberts was sworn in, the Supreme Court has ruled on seven cases related to the Voting Rights Act, according to our analysis of data from the Supreme Court database. In five of those cases, the ruling went in a conservative direction. one of the other cases it was a complex opinion in which the median Justice, Anthony Kennedy, joined liberals on the court in overturning a congressional district in Texas, saying it had unconstitutionally diluted Latino votes. In the other “liberal” outcome, the court ruled in a 2008 case involving a Texas utility district that Section 5 of the Voting Rights Act was not unconstitutional. Five years later, he eliminated the prior authorization requirement in another case, Shelby County v. Holder. That 2013 ruling didn’t invalidate Section 5 entirely, but it did reject the formula Congress used to determine which jurisdictions were subject to prior authorization, saying it was based on outdated data.
A ruling in Alabama’s favor in this case would have a different but equally significant impact. In the short term, it would mean there are fewer majority black districts in Alabama and Louisiana, where a similar court case is taking place. The justices could also go further if they fully side with Alabama’s argument in the case. An analysis found that if other states used the “race blindness” approach advocated by Alabama, the total number of majority-minority districts would be substantially less. The analysis also found that in the South, where this approach would have the greatest impact, a race-blind map would benefit Republicans.
That is not the way the Voting Rights Act has been interpreted so far. “The court has accepted the principle that if the use of race is necessary to comply with the Voting Rights Act, then it is constitutional to use race to do so,” Pildes said. But this case could be an opportunity to revise, and significantly revise, the requirements of the Voting Rights Act. And that could end up reducing the electoral power of minority voters.