The Supreme Court May Soon Gut What’s Left Of The Voting Rights Act

Alabama Republicans' argument for a race-blind approach to redistricting could lead to the "biggest decline in Black and Latino representation in generations."

In March 1965, Martin Luther King, Jr. led a civil rights march in support of voting rights in the Jim Crow South across the Edmund Pettus Bridge in Selma, Alabama, to the state capitol in Montgomery. That march, immortalized by the bloody repression committed by Alabama state troopers on the bridge, led directly to the passage of the historic Voting Rights Act that put an end to Jim Crow voting restrictions. Fifty-seven years later, on Oct. 4, the Supreme Court will hear arguments from the state of Alabama that what remains of that Voting Rights Act should be gutted.

After the 2020 Census, Alabama designed new Congressional maps that swept up Black voters across the state and packed them into just one majority-Black district, dispersing the rest in majority-white districts that tilt heavily Republican. The state was left with six such districts and only one majority-Black district in a state where over a quarter (26.8%) of voters are Black.

A group of Black voters and the Alabama chapter of the NAACP and Greater Birmingham Ministries sued, arguing this was a violation of the Voting Rights Act. But Alabama Secretary of State John Merrill has an aggressive legal theory. He argues in Merrill v. Milligan that legislative district maps challenged under the Voting Rights Act’s Section 2 for failing to provide equal representation to racial minorities through racial vote dilution should be judged solely by a race-blind standard.

The race-blind standard Alabama wants the court to accept is based on the average result of numerous algorithmically generated district maps that do not take race into account. While the use of computer-generated maps is common in partisan gerrymandering cases, it would be a new development in Voting Rights Act cases. Perhaps that is because applying a computer-generated race-blind test to a race-conscious law goes against the purpose of the law.

If the court doesn’t accept this new race-blind standard, Alabama wants the court to rule that the Voting Rights Act no longer applies to the redistricting of single-member districts, which would produce a similar result.

“It’s a frontal attack on the body of precedent that’s existed for the last 40 years with respect to Section 2,” Nicholas Stephanopoulos, a Harvard Law School professor, told HuffPost.

The arguments put forward by Alabama, and backed by the Republican Party, would overturn at least 40 years of Supreme Court precedent on how courts should judge Section 2 redistricting complaints. They fly against the history and meaning of the Voting Rights Act, which was enacted to prevent states from restricting access to the ballot for racial minorities and provide for their equal representation.

People march across the Edmund Pettus Bridge during commemorations for the 57th anniversary of "Bloody Sunday" on March 6 in Selma, Alabama.
People march across the Edmund Pettus Bridge during commemorations for the 57th anniversary of "Bloody Sunday" on March 6 in Selma, Alabama.
Brandon Bell via Getty Images

Their arguments are likely to be met with a friendly ear by the Supreme Court’s six-justice conservative supermajority that has long opposed race-conscious policies. If the court’s conservatives accept Alabama’s arguments and further gut the Voting Rights Act, the result would be fewer Black and Latino elected representatives at all levels of government from municipal government to state legislatures to Congress.

“If Alabama prevails here this is going to result in the biggest decline in Black and Latino representation in generations,” Stephanopoulos said.

‘It’s Not A Close Case’

To reach this result, Alabama Republicans, who control state government, cracked Black communities across the historic Black Belt, including splitting the majority Black city and county of Montgomery into three congressional districts, two of them majority white, and then packed the 7th district with a large percentage of Black voters. This map effectively diluted the Black vote, denying 27% of the Alabama population the right to be represented by someone of their choice.

A group of Black voters and the Alabama chapter of the NAACP and Greater Birmingham Ministries brought a lawsuit against Alabama arguing that the map amounted to racial vote dilution under Section 2 of the Voting Rights Act, which is used to challenge voting laws and district maps as harming racially minorities because it did not include a second congressional district where Black voters had an opportunity to elect a candidate who represented their interests.

In doing so, they argued, the map failed to meet the preconditions for racial dilution set by the Supreme Court in its decision in the 1986 case of Thornburg v. Gingles.

The court’s decision in Gingles came after Congress overrode the court’s 1980 City of Mobile v. Bolden ruling that limited Section 2 challenges only to cases where the law or map under question was explicitly motivated by racial discrimination. Congress overrode this decision when it reauthorized the Voting Rights Act in 1982, and included language stating that Section 2 challenges can succeed if they show a disparate negative impact on the racial minority bringing the challenge.

In Gingles, the court laid out a framework to govern how courts should judge Section 2 racial vote dilution cases under the new disparate impact regime. The Gingles framework demanded that those bringing Section 2 racial vote dilution cases meet three tests in order to prove that an additional majority-minority seat is warranted.

First, the minority population must be sufficiently large enough and reside in a geographically compact region. Second, that minority population must be politically cohesive, as in it must share a common voting pattern. And third, the majority and minority populations are politically polarized in a manner where the majority population, in this case, whites, must also vote cohesively as a bloc in a manner that would always defeat the minority’s preferred candidate.

In the Alabama case, the challengers argued in the lower courts that their claim met all three prongs of the Gingles framework. The Black Belt, named for the color of its fertile soil, was home to the state’s cotton plantations where enslaved Black people lived and worked. The region is still home to the majority of the state’s Black population, who have a shared history of descent and culture. Black voters in the Black Belt are also a politically cohesive community with similar interests and voting behaviors. And Black and white voters are highly racially polarized with whites voting overwhelmingly for Republicans and Blacks for Democrats.

State troopers watch as civil rights marchers cross the Edmund Pettus Bridge over the Alabama River in Selma, Alabama two days before troopers used excessive force driving marchers back across the bridge, killing one protester.
State troopers watch as civil rights marchers cross the Edmund Pettus Bridge over the Alabama River in Selma, Alabama two days before troopers used excessive force driving marchers back across the bridge, killing one protester.
Bettmann via Getty Images

A three-judge district court panel, consisting of two judges appointed by former President Donald Trump and one by former President Bill Clinton, agreed with the challengers that the Gingles framework required Alabama to draw a new map with two majority-Black districts and ordered a preliminary injunction blocking Alabama’s map from going into effect. The panel then rejected Alabama’s appeal stating that it was a “straightforward Section Two case, not a legal unicorn,” that “rests on an extremely robust body of evidence.”

Whether the challengers are “substantially likely to succeed on the merits of their Section Two claims,” was not, the court said, “a close one.”

“It’s not a close case,” said Stuart Naifeh, who is one of the NAACP Legal Defense Fund lawyers representing the Black voters of Alabama in the case. “This is a case where Alabama has perpetuated a redistricting scheme that limits the ability of Black voters to elect candidates of their choice.”

‘This Divvying Us Up By Race’

But Alabama had a final move to protect their congressional map denying Black voters a second opportunity district: appeal to the Supreme Court.

The Supreme Court’s six-vote conservative supermajority made clear in their first term together that they have no qualms with overturning existing precedent and rewriting the law to match the ideological agenda of the conservative legal movement. Their decisions overturning Roe v. Wade and rewriting gun laws show that. And destroying the Voting Rights Act has long been a goal of the conservative movement.

“Many or most of the conservatives on the court hate the Voting Rights Act, hate disparate impact statutes in general, hate race-conscious policies, and have a powerful ideological motive to do whatever they can to trim and change and cut back on current law,” Stephanopoulos said.

As an aide in Ronald Reagan’s Justice Department, Chief Justice John Roberts wrote numerous memos in opposition to the disparate impact amendment adopted with the 1982 Voting Rights Act reauthorization.

“It is a sordid business, this divvying us up by race,” Roberts complained in his opinion in a 2006 Voting Rights Act case.

Roberts also wrote the 2013 Shelby County v. Holder decision that gutted the Voting Rights Act Section 5 preclearance provision, which required states with a history of racial discrimination to get voting laws and maps precleared before their adoption, by invalidating the law’s preclearance formula.

Justice Clarence Thomas wrote perhaps the fiercest rejection of racial vote dilution cases brought under Section 2 in the 1994 case of Holder v. Hall.

“[I]n pursuing the ideal measure of voting strength, we have devised a remedial mechanism that encourages federal courts to segregate voters into racially designated districts to ensure minority electoral success,” Thomas wrote. “In doing so, we have collaborated in what may aptly be termed the racial “balkaniz[ation]” of the Nation.”

When Alabama petitioned the court to reverse the lower court panel’s injunction suspending the state’s map for it to draw a new one this year, the court agreed and ordered the map to go into effect for the 2022 election while it took up the case in its October term.

All of the conservative justices supported this position save for Roberts, who wanted the court to take up the case for argument but not take the extreme step of overriding the injunction imposed by the lower court panel.

Reduction In Representation

Our argument is the existing standard has been in place for 40 years, and it works,” Naifeh told HuffPost. “States know what they need to do to comply with the Voting Rights Act. Alabama chose not to do those things here. And there’s no need to modify the standard.”

But, “the real question,” Naifeh noted, is what the six-vote conservative bloc, who apparently have no interest in respecting precedent that goes against their shared ideological concerns, will do.

There’s a range of outcomes that the court could reach in this case. The court could provide clarification about the existing framework while keeping it in place, as Roberts suggested in his dissent in staying the lower court panel’s injunction.

The addition of Justices Amy Coney Barrett, Neil Gorsuch and Brett Kavanaugh swung the court hard to the right empowering conservatives to bring cases like Merrill v. Milligan.
The addition of Justices Amy Coney Barrett, Neil Gorsuch and Brett Kavanaugh swung the court hard to the right empowering conservatives to bring cases like Merrill v. Milligan.
JONATHAN ERNST via Getty Images

“We’re hopeful that we can persuade him and possibly one other justice that the court should reaffirm the Gingles standard,” Naifeh said.

The court could also tighten the standard required under Gingles to make it harder to bring a challenge. It could require challengers to meet a higher level of scrutiny when they bring cases under Section 2. It could uphold Gingles while finding that Alabama is not required to draw a new district.

Or the court could, and what most observers believe it will do, accept Alabama’s argument and overturn its longstanding precedent on Section 2 cases.

While that would not threaten Alabama’s existing one majority-minority district, it would be devastating for Black and Latino political representation in other states, particularly in the South.

“If the court went all the way as far as Alabama is suggesting it could prevent states from ever drawing any new majority-minority districts and potentially threaten existing majority-minority districts,” Naifeh said.

This result is what Stephanopoulos and University of Michigan political science professor Jowei Chen found in their 2021 Yale Law School Journal article “The Race-Blind Future of Voting Rights,” and laid out in a brief filed to the court in support of the Black voters of Alabama.

For their article, Stephanopoulos and Chen did what Alabama wants to do to choose race-blind district maps and ran a series of randomized algorithmic map simulations that did not take race into account for 19 of the 20 states with sizable Black or Latino voting age populations. They then compared the average number of majority-minority districts arising from the race-blind algorithmic process to existing maps that do factor in race in some circumstances, as required by existing precedent on Voting Rights Act cases.

Their study found that a race-blind approach would reduce Black political representation in Southern and Border South states and Latino representation in Western states. In the Deep South, this would lead to a reduction in seats favoring Democrats and an increase in the number of Republican legislators.

In Alabama, for example, the race-blind approach produced up to 10 fewer majority-Black districts in the state legislature than currently exist.

The reduction in Black and Latino political representation would result in exactly what the Voting Rights Act sought to address.

“And that’s the government being responsive,” Naifeh said. “It’s not just, ‘oh, Black people get their own elected officials.’ It’s when you have that kind of circumstance where the social conditions and the political conditions and the history are leading to a government that is not responsive to the needs of the minority community then the Voting Rights Act applies.”

When communities are not allowed equal representation, they are subject to arbitrary and dismissive governance. Based on the lower court panel’s findings, Black Alabamians are already being denied government that is responsive to their concerns.

The Supreme Court’s likely gutting of Section 2 of the Voting Rights Act, when applied to redistricting, will only make matters worse in Alabama and across the country by taking away the liberty the Voting Rights Act granted to racial minorities to engage in self-government. It pushes back the progress that advanced across the Edmund Pettus Bridge 57 years ago.

CORRECTION: A previous version of this story stated incorrectly that the Supreme Court made a ruling in the case of Thornburg v. Gingles in 1982. This occurred in 1986.

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