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] portends a race-blind Voting Rights Act, then that restraint on gerrymandering is gone. That would leave little but state law grounds to stop gerrymanderers from implementing their most creative thoughts.”
Alabama says that under the Voting Rights Act, states should be required to draw majority-minority districts only in circumstances where a race-blind approach to redistricting would have produced those districts. That means challengers could not use race over other redistricting criteria to prove that the first prong of the Gingles test could be met.
“Alabama’s proposal would turn the VRA into a race-blind statute that only looks into what this hypothetical race-blind process would produce,” said Nicholas Stephanopoulos, a Harvard Law professor who specializes in election law. “And so the consequence would be just substantially less minority representation in America.”
The approach that Alabama is advocating “seems to be reverse-engineered to try to make it harder for plaintiffs to win these cases,” said Rick Hasen, an election law professor at University of California-Irvine.
Should the Voting Rights Act apply in redistricting?
While Alabama is making complicated arguments to the Supreme Court about the technical approach to complying with the Voting Rights Act, Texas is shooting at the moon with its claims about the act’s reach.
The Lone Star State signaled in briefs filed in the Justice Department’s redistricting case that Texas will argue to the Supreme Court that Section 2 of the act should not apply in redistricting.
Texas already has Justice Clarence Thomas on its side with its claim, as he wrote in a 2017 concurrence and in other cases that he holds that view. That case was heard before former President Donald Trump’s three appointees joined the court, so it is unclear whether any of them would join Thomas. Even if they did, that would still leave Texas one justice short of the five votes it would need for a ruling in favor such an argument.
Part of what makes Texas’ argument such a stretch is that it ignores the legislative history of the law, legal experts said. When Congress has renewed the Voting Rights Act in the past, its adjustments to Section 2 have been aimed at how courts should apply it in redistricting.
“If Justice Thomas was right that Section 2 was never intended to apply to redistricting, Congress certainly seemed to think otherwise every time it renewed the act and tweaked the redistricting standards,” Hasen said.
Can private parties bring Voting Right Act claims?
A similarly radical argument being made by Texas is that the law does not confer a so-called private cause of action. Texas made the claim in response to the redistricting lawsuit it faces from private civil rights groups challenging its maps. Alabama made the claim as well in earlier stages of its case, but it has abandoned the argument in its appeal to the Supreme Court.
If that argument, which was also floated by Georgia in Voting Rights Act redistricting challenges brought there, were endorsed, it would mean that private individuals – who currently bring the bulk of Section 2 case – would no longer be able to file such challenges, leaving the law’s enforcement to civil suits brought by the Justice Department.
Texas and Alabama pointed to a line from Justice Neil Gorsuch’s concurrence in the Supreme Court’s most recent Voting Rights Act case, where he, joined by Thomas, said it was an “open question” whether such a private cause of action exists.
Legal experts are deeply skeptical that the argument could gain traction with other justices, given that courts – up to the Supreme Court – have routinely heard privately brought Section 2 cases, including the case that produced the Gingles test.
“The idea that none of these lawsuits could ever have been brought because private plaintiffs can sue runs against, like literally, the entire history of Section 2,” Stephanopoulos said.
How should multi-ethnic coalitions configure into Voting Rights Act compliance?
Unlike some of the other arguments put forward by GOP states, their claims about how multi-ethnic coalitions should be viewed under the Voting Rights Act would not require the Supreme Court to drastically shift its jurisprudence.
States like Texas are arguing that their opponents’ legal challenges should fail because the challengers are asking for minority-majority districts that would combine racial or ethnic minorities to reach a majority.
Many lower courts have OK’d Voting Rights Act districts drawn with multi-ethnic coalitions, but some courts haven’t. The Supreme Court hasn’t yet confronted the question directly and if the justices rejected the use of multi-ethnic coalitions, the “Supreme Court wouldn’t have to adopt total outlier position,” Stephanopoulos said.
In the Texas case, the state is claiming that the Voting Rights Act does not require Texas to create a minority-majority district by combining Black and Hispanic voters, as the challengers are seeking to do in the state.
The impact of such a ruling would be less extreme than one that embraced GOP states’ more sweeping arguments. Coalition districts are already tough to assemble under the Voting Rights Act because, under the Gingles test, those different ethnic groups must exhibit shared political preferences.
“It’s not like the court saying, ‘You can’t have the rainbow coalition,’ would affect a lot of districts and would overturn existing understandings,” Hasen said. “I think there’s just an uncertainty about that.”