WASHINGTON – Just over a year ago the Supreme Court walloped a key provision of the landmark 1965 Voting Rights Act, making it tougher to establish that a change to an election law – say, cutting back on early voting – discriminated against minority voters.
Now, voting rights advocates fear, the court is winding up for another swing.
The justices will hear oral arguments Tuesday in a challenge to Alabama’s recently redrawn congressional map, which includes one district out of seven with a majority of Black voters – even though African Americans make up 27% of the state’s population. The court’s ruling could have sweeping implications for congressional maps nationwide.
Alabama officials assert the new districts are race-neutral and that creating a second African American district would require mapmakers to focus on race as their top priority, a command they say would itself amount to unconstitutional discrimination. Opponents say that argument turns the whole point of the Voting Rights Act on its head.
“The Voting Rights Act was created precisely to prevent the kind of manipulation of district lines that undermine the political power of Black communities that we see in Alabama,” said Sophia Lin Lakin of the American Civil Liberties Union, one of the groups that initially challenged Alabama’s new congressional districts last fall.
The case arrives at the high court weeks before the November midterms, though the decision won’t land in time to affect this year’s election. It is one of several cases involving race the justices are considering as the Supreme Court’s 6-3 conservative majority has viewed policies that focus to combat discrimination with skepticism.
Conservatives who side with Alabama argue that lower courts have misread the Voting Rights Act. The intention is to bar discrimination, they say, not to compel states to go out of their way to do everything possible to avoid the appearance of discrimination.
“Alabama enacted districts in 2021 for the purely race-neutral purpose of equalizing the population across districts, while making minor changes to the overall map,” said Carrie Severino, president of the conservative Judicial Crisis Network. “The plaintiffs are now demanding that the state’s race-neutral map be thrown out in favor of a racially gerrymandered map that makes radical changes to Alabama’s longstanding congressional districts. Nothing in the Voting Rights Act requires this.”
Looked at one way, the case is partly about a much broader question courts and lawmakers have wrestled with: Whether plaintiffs must show a state intended to discriminate against minority voters or whether the discrimination was a byproduct of other motives.
The Alabama litigation, Merrill v. Milligan, is one of two major election cases before the court this term. The other comes from North Carolina and raises the question of how much power state legislatures have to create the rules for federal elections without oversight from state courts. At issue there is the meaning of a clause in the Constitution that delegates responsibility for federal elections to the “legislature” of each state.
States redraw their congressional boundaries every decade following the census. In some states the process is governed by a non-partisan body, but in most cases the endeavor is a political one – led by state lawmakers who seek an advantage for their party. The Supreme Court ruled in 2019 that federal courts would not get involved in partisan gerrymandering suits. Racial gerrymandering, though, is another matter.
A 1986 Supreme Court decision, Thornburg v. Gingles, lays out how federal courts are supposed to determine whether a congressional map violates the Voting Rights Act. Courts must first consider factors such as whether there is a majority group large enough and compact enough to make up a district. Plaintiffs also must demonstrate that white residents vote together cohesively enough to defeat a minority group’s preferred candidate.
A three-judge federal court in January ruled against Alabama, asserting that its congressional map likely violated the Voting Rights Act in light of the factors set forth in Thornburg. The court said it didn’t regard the question of whether the maps violated the law “as a close one.” Two of the three judges were nominated by a Republican president.
The state asked the Supreme Court to put that ruling on hold temporarily and a 5-4 majority in February ruled that it was too late to change the map ahead of the state’s primary election in May.
“Filing deadlines need to be met, but candidates cannot be sure what district they need to file for,” Associate Justice Brett Kavanaugh wrote in an opinion joined by Associate Justice Samuel Alito. “Indeed, at this point, some potential candidates do not even know which district they live in. Nor do incumbents know if they now might be running against other incumbents in the upcoming primaries.”
But the emergency order drew a dissent from Chief Justice John Roberts as well as the court’s three liberal justices. Associate Justice Elena Kagan said the decision “does a disservice to Black Alabamians who…have had their electoral power diminished – in violation of a law this court once knew to buttress all of American democracy.”
In a related decision in June, the Supreme Court allowed Louisiana to use a map in this year’s election that includes white majorities in five of six congressional districts. That litigation is on hold pending the outcome of the Alabama case.
In the most significant case to deal with voting rights since 2013, the Supreme Court last year upheld an Arizona law barring unions and advocacy organizations from collecting voters’ mail-in ballots, a practice critics call “ballot harvesting.” The court signaled that challenges to voting rules brought under the Voting Rights Act’s prohibition on discrimination – though still possible – may become far harder to win.
That opinion came eight years after the court gutted another provision of the Voting Rights Act that permitted the Justice Department to review election laws in states with a history of racial discrimination.