Supreme Court will hear challenge to key section of the Voting Rights Act in redistricting case
(CNN) — Almost a decade after effectively gutting a key provision of the Voting Rights Act, the Supreme Court is setting its sights on a different provision of the law on Tuesday in a case that could make it much more difficult for minority voters to challenge redistricting maps.
At issue is Section 2 of the historic law, which bars voting rules that result in a denial or abridgment of the right to vote on account of racial discrimination. The case marks one of the most important disputes the court will hear this term as the justices — including Ketanji Brown Jackson, the court’s first Black female justice — consider several cases with implications concerning race.
The court will review a lower court opinion that invalidated Alabama’s congressional map as a likely violation of the law. The state has seven congressional districts, and despite the fact that Black voters account for 27% of the state’s voting age population, there is only one majority Black district. The federal court ordered another majority Black district to be drawn. In an ominous sign for supporters of voting rights, however, a 5-4 Supreme Court majority blocked that decision, allowing the current map to remain on the books, before agreeing to hear the case this term.
Supporters of voting rights are on edge, cognizant of the fact that in 2013 Chief Justice John Roberts wrote an opinion that effectively invalidated a separate section of the law that required states that had a history of discrimination to obtain federal approval before changing election laws. In the years since, challengers have more heavily relied upon Section 2 of the law, which may now also be in jeopardy.
They say that Section 2 has been instrumental in paving the way for minority voters to more fully participate in the political process and that it represents a safeguard against maps that appear to be neutral but actually entrench racial polarization.
“Section 2 remains an irreplaceable tool for ensuring that mapmakers’ discretionary choices do not shut minority voters out of a seat at the table,” David A. O’Neil, a lawyer representing the Brennan Center for Justice, wrote in court briefs in support of the challengers.
Voters and voting rights group challenged the maps in court and won when a panel of judges — including two Trump nominees — held that the current map likely violates Section 2 because Black voters have “less opportunity than other Alabamians to elect candidates of their choice to Congress.”
The court ordered a new map to be drawn with an additional majority Black district, which would have likely led to Democrats gaining another seat in the US House in the fall. But the opinion was frozen by the 5-4 majority at the Supreme Court.
Now supporters of voting rights are fearful that the justices are poised to make it much more difficult for plaintiffs to challenge maps under Section 2.
“Section 2 surgically targets a set of carefully defined circumstances in which mapmakers, as in Alabama, ignored clear and reasonable alternatives that give minority voters the ability to engage in the pull, haul and trade at the heart of the democratic process and instead, design racially polarized districts where minority voters are submerged and effectively shut out of the democratic process,” O’Neil said.
As a part of their analysis, the justices will review a 1986 case, Thornburg v. Gingles, that established standards for assessing whether a map violates Section 2. The first step is to show that a minority group is sufficiently large and geographically compact to constitute a majority in a district that is reasonably configured. Once that threshold is considered, the court moves on to consider other elements. The final step, once preconditions are met, is for the court to look at the “totality of circumstances” to determine whether members of a racial group have less opportunity than other members of the electorate.
Edmund LaCour Jr., Alabama’s solicitor general, told the court in briefs that for “decades” the state has only had one majority Black district, and that in 2021, when the state enacted new maps, it “largely followed existing district lines” making “race-neutral adjustments for small shifts in population over the last decade.”
But LaCour said the plan was deemed unlawful because the federal court interpreted Section 2 to require the state to “trade its neutrally drawn districts” in order to draw a second majority Black district.
Such a requirement, LaCour argued, puts the state at “loggerheads” with the equal protection clause of the Constitution because the state would have to “prioritize race always in redistricting.” For the challengers to succeed in adding another district, he said, the state would have to “intentionally sort Alabamians by skin color.”
The Voting Rights Act, LaCour said, “does not require States to create majority-minority districts wherever possible” because “compelling States to maximize the voting power of one racial group over others obviously raises serious constitutional concerns.”
He said that in order to establish irregularities, a plaintiff should be required to prove a challenged practice can be explained only by racial discrimination.
Challengers to the current map — including registered voters and the NAACP — urged the Supreme Court to uphold the lower court opinion and say that the “mere consideration of race” to remedy a Section 2 violation does not inevitably lead to equal protection concerns under the Constitution.
They asked the justices to reject Alabama’s attempt to have the court rewrite Section 2 by placing the burden on the plaintiffs to prove that a challenged plan can be explained “only by racial discrimination.”
“As uncomfortable as the political reality in Alabama might be—and as strong the temptation to shut our eyes to the tenacity of racial discrimination in voting—the courts must not blink,” attorney Abha Khanna argued in court papers representing Black voters.
Khanna said that plans drawn up by experts for her side show that a second district could be drawn up that complies with traditional redistricting principles that take into consideration compactness, population equality, contiguity, and respect for communities of interest where race was not the predominant factor.
“Black residents in Mobile, Montgomery and the greater Black Belt share deep historical, cultural and political connections,” Khanna wrote. “They could easily elect their preferred candidates in a compact congressional district drawn consistent with traditional redistricting criteria,” Khanna said.
Instead, she wrote, the state plan “divides the Black voters within this well-established community of interest across several districts, and as a result, Black Alabamians have no chance to elect their preferred candidates outside of” the one Black majority district.
“Adopting a purportedly ‘race-neutral’ redistricting baseline would serve only to submerge long-oppressed minority groups into districts where they are consistently outvoted by the very majorities that have discriminated against them for centuries,” Khanna said.
All Section 2 requires, she said, is that districts be drawn that “give compact, politically cohesive minority groups a reasonable opportunity to elect their preferred representatives.
The challengers are supported by the Biden administration, which noted in briefs that the current framework governing Section 2 vote dilutions has stood for more than 35 years.
“Decades of experience have shown that Section 2, as implemented by the Gingles framework, works as Congress designed by screening out meritless claims and providing relief only for the ‘special wrong’ that occurs when a districting plan combines with racially polarized bloc voting to deny a cohesive minority group an otherwise available opportunity to elect its candidates of choice,” Solicitor General Elizabeth Prelogar argued.
Roberts had voted with the minority to keep the lower court ruling in place while the appeals process plays out. But, critically, he made clear that while the lower court had, he believed, properly followed the Gingles framework, that framework might need revisiting.