WASHINGTON ― Democrats are sounding the alarm on the remaining federal protections for voting rights, fearing the Supreme Court may completely hollow out the Voting Rights Act of 1965 and deal another blow to electoral representation of racial minorities nationwide.
The fears follow the Supreme Court’s decision on Monday to block a lower court’s order striking down Alabama’s redistricting plan as an unconstitutional racial gerrymander under the Voting Rights Act. The lower court had ruled that Alabama must provide at least two Black-majority congressional districts, as opposed to the one created in the latest redistricting plan, for its 27% Black population in order to avoid violating requirements in Section 2 of the Voting Rights Act that provide for a minimum of minority representation.
In an opinion joined by four other conservative justices, Justice Brett Kavanaugh declared that it was too close to the state’s May primary election to redraw maps to include a second district with a minority opportunity and also said the court would take up the case for full arguments later this year. Those arguments are likely to end with another opinion from the court’s conservative majority further hobbling the landmark Voting Rights Act.
“I think the warning signs on our democracy are flashing,” Sen. Raphael Warnock (D-Ga.) told HuffPost, calling the ruling “consistent with the kind of hostility to voting rights we’ve seen from the Supreme Court.”
The issue at hand is whether the Voting Rights Act’s protections for minority representation when states draw new legislative district lines will continue to take race into account or whether they will become race-blind.
Currently, states with significant populations of racial minorities are required under Section 2 of the Voting Rights Act to draw districts where those minority groups can elect their preferred representatives while meeting some criteria, including whether the district is compact and whether racial polarization is so severe as to prevent them from selecting their preferred representative. States must also draw district lines, based on the constitution’s equal protection clause, without taking race into account absent a significant reason, like compliance with the Voting Rights Act. But that might be about to change.
Conservative jurists have long sought to gut the Voting Rights Act’s protections in redistricting by requiring district lines be drawn without taking race into account at all. This “race-blind” theory would overturn existing voting rights precedents protecting minority opportunity districts by limiting the drawing of districts to only nonracial considerations. This is the argument that Alabama made in its appeal to the Supreme Court.
The adoption of a “race-blind” approach to the Voting Rights Act would result in a significant reduction in the number of legislative seats held by Black and Latino lawmakers at the state and national levels, according to the most comprehensive study on the subject to date.
The study, by law professors Jowei Chun and Nicholas Stephanopoulos, found that the law as it now stands promotes the existence of more minority opportunity districts than would exist otherwise. In fact, their study finds that the number of minority opportunity districts would fall significantly in the Deep South if the court were to adopt a “race-blind” model for redistricting. This would produce not only a reduction in the number of Black and Latino lawmakers elected at the state and national levels, but also a drop in Democratic-held districts in the Deep South where racial polarization is most severe.
The fact that the court took up the case is being seen as ominous by voting rights supporters.
“I am concerned about Section 2. They have already hobbled the impact of Section 5 and of course we could have fixed that by passing the John Lewis Freedom to Vote Act,” Warnock told HuffPost. “What this underscores is the need for Congress to act. And we still haven’t done it, to great peril to our democracy.”
During last month’s Senate debate over voting rights legislation, which Republicans filibustered, GOP senators argued that restoration of preclearance provisions under Section 5 of the Voting Rights Act, which the Supreme Court struck down in 2013, isn’t necessary because the Justice Department still has authority under Section 2 to prevent discrimination at the ballot box.
“The idea that somehow the Justice Department no longer has authority to challenge laws with which it disagrees ... is simply not accurate. Section 2 of the Voting Rights Act provides that authority, it’s in effect, and the Department of Justice rightly or wrongly has invoked it [in Georgia],” Sen. Susan Collins (R-Maine) noted during an impassioned exchange with Sen. Jon Ossoff (D-Ga.) on the Senate floor.
This ignored the court’s recent gutting of Section 2’s application to election laws in the Brnovich v. DNC case, and, as Ossoff also noted, it doesn’t take into account that relying on Section 2 to protect access to the ballot “can be far too time consuming to allow a remedy to emerge in the courts.” The court’s ruling on Monday allowing Alabama’s gerrymandered congressional map that dilutes the power of Black voters to go forward further supports Ossoff’s argument.
“This is precisely why Sections 4 and 5 were enacted at the time to allow the Justice Department to preclear changes in voting laws,” Ossoff said at the time.
Only one Republican senator supported advancing legislation to restore Section 5 of the Voting Rights Act: Sen. Lisa Murkowski (Alaska). Democrats hoped to create an exception to the filibuster on voting issues and pass legislation to protect access to the ballot via a simple majority vote, but failed after two Democratic senators wouldn’t support the changes.
The failure to pass that legislation now means that the six conservatives on the court will take the reins in writing voting rights law. Their long-term hostility to voting rights laws promises a continued shrinking of the hard-won victories of the civil rights movement.