The Supreme Court may completely hollow out the Voting Rights Act by 2024
CNN
By Joan Biskupic, CNN legal analyst & Supreme Court biographer
The Supreme Court‘s action late Monday in an Alabama redistricting case foreshadows a new threat to the Voting Rights Act of 1965 and electoral opportunities for Blacks and other racial minorities nationwide.
The justices announced they would revisit a key section of the landmark law in upcoming months and in a 5-4 vote reinstated an Alabama congressional map that a lower court found had diluted the voting power of Blacks in the state.
Led by Chief Justice John Roberts, the Supreme Court’s conservative majority in 2013 eviscerated a key section of the Voting Rights Act that required states with a history of discrimination to obtain federal approval before changing election rules.
The new controversy could lead to a further hollowing out of a separate provision — known as Section 2 and barring practices that racially discriminate — specifically in the context of redistricting maps.
Combined, the court’s actions could mean the reach of the Voting Rights Act is dramatically limited by the 2024 presidential election.
This latest voting rights controversy arises against a broader erosion in America of democratic norms and a polarized electorate. States have increasingly adopted new restrictions for the polls, and federal legislation to safeguard voting rights has stalled in Congress.
The conservatives who control today’s court have consistently enhanced states’ control over election practices, while diminishing opportunities for federal oversight and judicial safeguards. In a case from Arizona last year, the justices narrowed the reach of Section 2 as they upheld policies requiring ballots cast by people at the wrong precinct to be wholly discarded and criminalizing third-party collection of absentee ballots, such as at nursing homes.
The three liberal justices dissented Monday and warned that if the Supreme Court fully accepts Alabama’s legal rationale for opposing a second majority-Black district in the state, it “would rewrite decades of this Court’s precedent” that has given racial minorities an equal opportunity to participate in elections.
Alabama’s population is 27% Black, and the state legislature created a map that would provide Blacks the opportunity to elect their preferred candidate in only one of the state’s seven congressional districts.
By allowing the state to use that map, Justice Elena Kagan wrote in her dissent, joined by Justices Stephen Breyer and Sonia Sotomayor, the court “does a disservice to Black Alabamians who under that precedent have had their electoral power diminished — in violation of a law this Court once knew to buttress all of American democracy.”
The court’s acceptance of the Alabama dispute means the justices will begin the 2022-23 session next October with two racially charged controversies on its agenda. The justices recently announced they would hear lawsuits against race-based affirmative action practices at Harvard and the University of North Carolina.
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Today’s Supreme Court majority is plainly exerting its right-wing muscle with three new appointees of former President Donald Trump. In the current 2021-22 session that will run through June, the court already has signaled a willingness to plow through precedent related to abortion rights, gun control and religious liberties. A test of the Clean Air Act will be heard later this month as well.
Voting rights pattern under Roberts
The scope of the historic Voting Rights Act has been a recurring agenda item for the high court under Roberts’ leadership.
In earlier decades, the high court upheld the sweep of the law, passed by Congress in the wake of the “Bloody Sunday” violence in Alabama. On March 7, 1965, state troopers with clubs and bullwhips attacked civil rights demonstrators crossing the Edmund Pettus Bridge in Selma.
In a significant departure from prior court rulings, the justices in 2013 ended the VRA Section 5 requirement that states and other localities with a history of race discrimination obtain federal approval for any electoral changes. Taking the lead for a 5-4 majority, Roberts wrote that the problems that so-called Section 5 was designed to correct no longer existed.
“Our country has changed,” Roberts wrote.
That 5-4 decision in Shelby County v. Holder left intact Section 2, related to direct government discrimination, but the majority now appears poised to curtail its coverage in redistricting.
Monday’s paired cases, Merrill v. Milligan and Merrill v. Caster, involved Section 2 challenges to a congressional map drawn by the Republican-controlled state legislature.
After Black voters and civil rights advocates challenged the seven-district congressional map as discriminatory, a US three-judge district court ruled that it diluted the votes of the Black votes under Section 2’s prohibition on practices that deny a person the right to vote on account of race.
The three-judge court said a second majority-Black district was possible, based on traditional redistricting criteria tied to the size of a population and their geographical compactness.
The judges concluded in their decision that, “under the totality of the circumstances, including the factors that the Supreme Court has instructed us to consider, Black voters have less opportunity than other Alabamians to elect candidates of their choice to Congress.”
As the Supreme Court on Monday restored the original map with only one Black-majority district and agreed to hear the legal merits of the case next session, the majority declined to explain its rationale.
Roberts separately dissented, saying he believed the lower court’s map, and a second-Black majority district, should have permitted for the 2022 election cycle while the justices resolved the larger questions and set standards for future elections.
But Justice Brett Kavanaugh, joined by Justice Samuel Alito, wrote a concurring statement saying he believed it was too close to the upcoming midterm congressional elections in Alabama to replace the legislature’s map. He warned of possible “chaos and confusion” leading up to the May primary and November general election.
Also in the majority were Justices Clarence Thomas, Neil Gorsuch and Amy Coney Barrett.
Regarding the timing of the case, Kagan countered for the three liberal dissenters, “Alabama is not entitled to keep violating Black Alabamians’ voting rights just because the court’s order came down in the first month of an election year.”
In his dissent, Roberts referred to the comprehensive lower court decision: “In my view,” he wrote, “the District Court properly applied existing law in an extensive opinion with no apparent errors for our correction.” Based on the standards of a 1986 case, Roberts said, the Blacks and advocacy groups challenging the Alabama map demonstrated the need for the second Black-majority district.
But Roberts also said that the 1986 precedent governing the dispute, Thornburg v. Gingles, and related rulings “have engendered considerable disagreement and uncertainty regarding the nature and contours of a vote dilution claim.” As a result, Roberts endorsed the majority’s decision to hear the Alabama controversy.
“(S)ubsequent elections,” the chief justice wrote, “would be governed” by the Court’s final decision in the dispute, likely to handed down in 2023.
Alabama state lawyers have advocated for a greater use of race-neutral criteria in redistricting. Kagan and the other liberal dissenters said their arguments were “premised on an entirely new view of what the law requires” and would likely lead to fewer districts where minority voters are able to elect their preferred candidates.
“The District Court here did everything right under the law existing today,” she continued. “Staying its decision forces Black Alabamians to suffer what under that law is clear vote dilution.”
On the special US district court that ruled on January 24 in the case were US appellate Judge Stanley Marcus, appointed by President Bill Clinton, and US District Court Judges Anna Manasco and Terry Moorer, appointed by President Donald Trump.
In concluding that Blacks merited a second majority-Black congressional district because of their population and location, the judges also took account of another element for a Section 2 violation, “that voting in the challenged districts is intensely racially polarized.”
“This,” the judges added, “is not genuinely in dispute.”
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