A view of the U.S. Supreme Court on June 28, 2021 in Washington, DC.
Toobin: Voting Rights Act close to being irrelevant
02:50 - Source: CNN
CNN  — 

A contentious decision from the US Supreme Court in a Voting Rights Act case from Alabama this week previewed what could be a momentous legal battle over the 1965 law, which over the past several years has been repeatedly whittled down by the conservative justices.

After lower courts ordered Alabama to redraw a congressional map that they found diluted the strength of Black voters, the state turned to the Supreme Court with aggressive arguments about the reach of the historic law. Alabama secured a 5-4 ruling on Monday night that will reinstate the disputed map for this year’s election.

The assertions by Alabama about the role race should play in redistricting are just one of several claims being made by states defending their maps in court that would scale back the scope of the Voting Rights Act – as Republican-controlled states move to adopt new voting restrictions in key battlegrounds. Some of the GOP states’ arguments appear to go beyond even what a 6-3 conservative court would be willing to sanction.

At stake is the role that a provision of the law known as Section 2 will play in combating racially discriminatory maps going forward. The provision prohibits voting procedures “not equally open to participation by members” of a protected class, like racial minorities, and it has been used to strike down maps said to dilute the power of voters of colors. In response to lawsuits filed in various GOP-led states challenging their maps under Section 2, the states have made a litany of arguments that would limit the use of the Voting Rights Act in redistricting cases.

“Republicans are in a mood where they want to throw mud at the wall,” said Michael Li, a senior counsel for the Democracy Program at the liberal-leaning Brennan Center.

The Supreme Court did not formally endorse Alabama’s claims. Some justices said their votes were driven by how redrawing the map would disrupt Alabama’s election planning.

“The court took pains to say that this was not a ruling on the merits, so we will take them at their word,” former Attorney General Eric Holder, now the head of the National Democratic Redistricting Committee, told reporters Thursday. “We will use Section 2 of the Act in other parts of the country.”

Still, even the sole conservative justice to dissent from the move, Chief Justice John Roberts, referenced a “wide range of uncertainties” that have arisen in how courts should approach vote dilution claims brought under the Voting Rights Act.

Supreme Court rulings that soften the punch of the act in redistricting could decrease the number of representatives of color in Congress and state legislatures, legal experts say. However, some conservatives have argued that the political shifts in who is electing minority candidates – with White voters helping to propel several people of color to Congress – will minimize the impact of such a change in the law.

“This notion that somehow you have to have a majority Black district to elect a Black representative was probably substantially more true in 1965 than it is in 2022,” said Jason Torchinsky, a Republican election lawyer.

What role should race play in redistricting Voting Rights Act compliance?

The arguments Alabama is making are focused on the technical process that courts use to review Voting Rights Act redistricting claims, but they get at the heart of how race should be used as a corrective under the law. If Alabama can convince the Supreme Court to turn away from race consciousness that has historically been deployed in Voting Rights Act vote dilution cases, it will make those cases more difficult for minority voters to bring.

“This comes down to the question of the role of race in drawing districts,” Ben Ginsberg, a former Republican redistricting lawyer, told CNN.

Under a 1986 Supreme Court precedent in the case Thornburg v. Gingles, redistricting challenges brought under the Voting Rights Act must pass what’s commonly known as the Gingles test to get courts to strike down a map. According to the test’s first prong, the challengers must prove that there is a relatively compact community of minority voters that could be drawn into a minority-majority district. The second two prongs have to do with racial polarization in voting: Does the minority population vote in a politically cohesive way? And does the racial majority vote as a bloc to defeat the minority voters’ preferred candidates?

The Alabama dispute before the Supreme Court targets the first prong, by digging into a tension between Voting Rights Act compliance and the Supreme Court rulings limiting the use of race in redistricting under the Constitution.

“The court has made clear that partisan gerrymanders are not justiciable,” Ginsberg said, referring to the Supreme Court’s 2019 decision that said federal courts had no role in policing partisan gerrymanders. “If [the Alabama dispute] po