Zach Gibson/Getty Images
The United States Supreme Court, which twice in the past decade has struck down or overridden provisions of the landmark 1965 Voting Rights Act, may well be on the verge of doing so 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.
In Tuesday’s case, Alabama’s congressional redistricting plan, passed by the state’s Republican legislature after the 2020 census, was at issue. 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 unanimously ruled that under the Voting Rights Act, Alabama should create not one, but two districts. of Congress compacts with a majority or a majority of black voters.
The state appealed to the Supreme Court, where on Tuesday Alabama Solicitor General Edmund LaCour Jr. argued that unless there is evidence of intentional racial discrimination, congressional districts must be drawn regardless of race.
‘What’s left?’
Judge Elena Kagan interrupted this argument by observing, “We said a long time ago that intent was required … and Congress immediately slapped us and said no, we didn’t mean that.”
Indeed, Congress amended the Voting Rights Act in 1982 to clarify that the Voting Rights Act was intended to eliminate discrimination results, whether or not there is intentional discrimination. In short, for example, the law seeks to prevent practices that have the effect of diluting the political power of minority voters by grouping them into a single constituency with a super-majority of black voters and then distributing the remaining minority voters over the whole territory. other neighborhoods. It’s called wrapping and cracking, and that’s what the lower court found in Alabama.
Kagan noted that Tuesday’s case is the third in a trilogy of cases in which the court’s conservative majority all but gutted the voting rights law. Alabama’s redistricting plan, she said, is a “classic claim of voter dilution” and, she told the Alabama lawyer, “You’re basically asking us to reduce considerably our 40 years of precedent and making it too extremely difficult to prevail So what is left?
Judge Ketanji Brown Jackson referred to the history of the Fourteenth and Fifteenth Amendments enacted after the Civil War to guarantee political power to former slaves. “When I delved into that level of analysis, it became clear to me that the drafters themselves had embraced the equal protection clause … in a race-conscious way,” she said. . “I don’t think the historical records establish that the founders believed racial neutrality or racial blindness was necessary.”
But Alabama’s LaCour stuck to his guns, arguing that the lower court’s ruling requiring the creation of a majority black second district is unconstitutional because race was the predominant factor in its creation. By contrast, he argued, the original map of the state legislature, with a single majority black district, is “racially neutral.”
The rebuttal
To refute that argument, Deuel Ross, senior counsel for the NAACP Legal Defense Fund, cited the lower court’s factual findings.
“There’s nothing neutral on the Alabama map,” he said. “Black Belt is a historic and extremely poor community of substantial significance. Yet the Alabama map cracks that community and allows the white bloc vote to deprive black voters of the opportunity to elect representation responsive to their needs.”
Where Alabama’s LaCour argued that creating the second district would divide part of the state’s Gulf Coast into two dissimilar districts, the NAACP attorney 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 Tories didn’t lend a hand, although they likely have a hand to play. They likely won’t take the state’s relatively extreme position that provisions of the Voting Rights Act require racial neutrality — provisions that, after all, were drafted to ensure greater political power for minorities. long suppressed races. But as election expert Rick Hasen observes, Alabama just might get something “almost as good.” Namely, “a new legal framework that makes it much more difficult for minority plaintiffs to gain full representation in Congress and other legislative districts.”
A decision in the case is expected later in the term.