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The Voting Rights Act Is in Real Trouble

The Supreme Court has signaled it's ready to reconsider or even abolish the use of race in redistricting. At risk are the Voting Rights Act and decades of precedent.

U.S. Supreme Court.
(Rena Schild/Shutterstock)
For the second time in less than a decade, the U.S. Supreme Court appears ready to eliminate a key section of the Voting Rights Act.

On Monday, the Supreme Court blocked a lower court’s decision that Alabama’s new congressional map was an illegal racial gerrymander. That locks in place the state’s map for its elections this year. It also tees up a future Supreme Court ruling — likely coming in the term that will start in October — that could gut or significantly weaken protections for minority voters under the Voting Rights Act (VRA).

The Alabama case represented a “textbook example” of the use of VRA protections, according to Michael Li, a redistricting counsel at the Brennan Center for Justice. “The fact that the Supreme Court took the case is ominous, plain and simple.”

As recently as 2019, the Supreme Court allowed a lower court’s ruling to stand that determined Virginia’s state House map was racially discriminatory. The mix of justices has changed since then, however. Chief Justice John Roberts — well-known for his antipathy toward the Voting Rights Act — sided with the court’s liberal justices in opposing the stay, but they were outvoted by the court’s five more conservative justices.

Civil rights advocates already knew they faced a perilous path in defending the VRA with this court. “It’s a challenging environment if you’re a civil rights attorney,” Jon Greenbaum, chief counsel of the Lawyers’ Committee for Civil Rights under Law, said even before the recent Supreme Court action.

Now the picture has suddenly grown more bleak for them. Almost immediately, a judge in a Georgia racial gerrymander case summoned lawyers back to court to determine whether the Supreme Court action would affect the challenge there.

“This could be a radical reworking of the VRA that would decrease minority representation, especially in the South,” wrote Rick Hasen, an election law expert at the University of California, Irvine. “These days, the last place you want to be with a voting rights case is before the U.S. Supreme Court."

Racial Redistricting Requirements

The Voting Rights Act was originally enacted in 1965. One of its key provisions required states and local jurisdictions with historic patterns of racial discrimination — including Alabama — to receive prior approval, or preclearance, from federal judges or the Justice Department before changing election laws. By the end of that decade, the Supreme Court ruled that this requirement applied to redistricting.

In 2013, the court ended the preclearance requirement, with Roberts writing for the majority in Shelby County v. Holder that the criteria used to determine preclearance states were outdated. As part of their efforts to pass new voting rights legislation, congressional Democrats spelled out new criteria, but they’ve failed to get bills through the Senate despite repeated tries, including an attempt just last month.

However, another key section of the Voting Rights Act, known as Section 2, remains intact. That’s what appears to be threatened by the court’s decision to hear the Alabama case.

Amendments to the Voting Rights Act adopted in 1982 required states to create districts that would allow minorities to elect their candidates of choice. Plaintiffs no longer had to show that they’d be harmed by proposed redistricting changes — by a majority-minority district being eliminated, for instance. Instead, there was a new requirement demanding that states enhance minority representation where appropriate.

In a 1986 case known as Thornburg v. Gingles, the Supreme Court put forward a set of rules to determine just when new districts favoring minority voters were required. Known as the Gingles test, it has three main parts. The minority group seeking relief has to make up a large enough share of the adult population to comprise a district. They have to show political cohesion, meaning most are likely to support the same candidates. And there has to be evidence of racially polarized voting, meaning that when minorities vote as a bloc, they’re likely to be outvoted by white voters.

Last month, a federal district court found that Alabama’s new congressional map failed the Gingles test. A large number of Black residents had been packed into a single district, leaving Black voters elsewhere with less of a chance of electing their candidates of choice than other Alabama voters. “Any remedial plan will need to include two districts in which Black voters comprise either a voting-age majority or something quite close to it,” the panel ruled.

When to Consider Race

During the 1990s round of redistricting, the Justice Department used the 1982 amendments and the Gingles decision to pressure states to create more majority-minority congressional districts. The result was 15 new Black-majority districts and 10 Hispanic-majority districts.

But the Supreme Court didn’t always like the results, worrying that linking geographically separate voters by race “bears an uncomfortable resemblance to political apartheid.” The court ruled that race could be used as a factor in redistricting, but could not be the predominant factor.

What does "predominant" mean? As things stand, “federal law is incredibly unclear” when it comes to the use of race in the redistricting process, says Jason Torchinsky, general counsel for the National Republican Redistricting Trust, the GOP’s primary redistricting strategic planning group.

“If you don’t consider race enough and fail to draw a majority-minority district where you should have, then you violated Section 2,” Torchinsky says. “But if you consider race too much and draw majority-minority districts where you shouldn’t have, then you violated (the Equal Protection Clause of) the 14th Amendment.”

The rules aren’t consistent from state to state, Greenbaum notes. Courts have to consider not just the size of minority populations but whether voting is racially polarized. Voting is more polarized on racial lines, for instance, in Mississippi than in North Carolina. “You can have different situations within the same state,” Greenbaum says. “Take Texas, for example. Districts do not have to be 50 percent Black, necessarily, to elect a Black candidate of choice. But if you are in Southwest Texas, districts really do need to be majority Latino to elect Latino candidates of choice.”

All these questions grew murkier due to yet another Supreme Court decision in 2019, which found that federal courts could have no say in determining whether partisan gerrymanders were illegal. One side effect of that ruling has been that many legislators have claimed — successfully, in some cases — they were motivated by partisanship, not race, while drawing maps.

“The court has said you can discriminate on a partisan basis,” says David Kimball, a political scientist at the University of Missouri-St. Louis. “Partisanship is so closely aligned with race, you can be doing one and say you’re doing the other.”

Timing Matters

In the Alabama case, Roberts and the liberal justices pointed out that the district court had painstakingly applied the Gingles test in its 225-page decision. “In my view, the district court applied existing law in an extensive opinion with no apparent errors for our correction,” Roberts wrote.

The majority offered no explanation for blocking the lower court’s ruling. Justice Brett Kavanaugh, however, wrote a concurring statement citing the Purcell principle, which discourages federal courts from making changes too close to an election. He argued that replacing the Alabama map risked creating “chaos and confusion” ahead of the May primary. “It is one thing for a state on its own to toy with its elections close to a state’s elections,” Kavanaugh wrote. “But it is quite another thing for a federal court to swoop in and redo a state’s elections laws in the period close to an election.”

Of course, the primary date could have been pushed back, a move the North Carolina Supreme Court made in December in response to another challenge. It doesn’t look too late to make changes if you consider that more than a dozen other states have yet to finalize congressional redistricting at all.

Critics warned that Kavanaugh’s statement practically invites states to engage in racial gerrymandering, since another election is almost always near. Prior to the Shelby County decision, Alabama couldn’t create new maps without prior federal approval, notes Ned Foley, a law professor at Ohio State University. Now, it can “sneak through” a new map, he said, without allowing a federal court any realistic chance for disapproval after the fact.

Section 2 at Risk

The state of Alabama argued that legislators did not engage in illegal racial gerrymandering. State Attorney General Steve Marshall complained that creating a second Black-majority district would require splitting up local jurisdictions, which is a traditional redistricting criterion.

He said in a statement that the district court’s ruling “would have resulted in a congressional map that would have unconstitutionally divided Alabamians based on race.” Creating a second Black-majority district would also violate “traditional race-neutral principles.”

In the state’s Supreme Court brief, Marshall quoted a 1994 opinion from Justice Clarence Thomas that argued gerrymanders do not violate voting rights even when they make it impossible for minorities to elect candidates of choice. “Minorities unable to control elected posts would not be considered essentially without a vote,” Thomas wrote. After all, he reasoned, they still get to vote and their individual votes are just as “effective” as others.

It remains to be seen whether the Supreme Court, when it decides the Alabama case, will take such a stance, in effect disallowing the use of race as a factor in redistricting. In a voting rights case last year, the court upheld two Arizona laws that are nominally race-neutral but had been challenged as discriminatory under the Voting Rights Act.

It’s possible that rather than disallowing the use of race in redistricting entirely, a majority of justices will instead reject the Gingles test. That is to say, even if a state’s demographics change dramatically, it might be under no compunction to create new districts that give minority voters a chance to elect their candidates of choice.

In Texas, 95 percent of the state’s population growth over the past decade came from minority populations, yet the state’s two new congressional districts are majority white. The Justice Department filed suit in December to block the map, arguing that it violates the Voting Rights Act requirement for minority voters to have an equal opportunity to elect candidates of their choice.

That’s the aspect of the VRA that’s now at risk. Through all the legal confusion, the need to create minority opportunity districts has remained a legitimate reason to consider race. Soon, that may no longer be the case.
Alan Greenblatt is the editor of Governing. He can be found on Twitter at @AlanGreenblatt.
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