Consequences of Supreme Court hearing on what the Voting Rights Act means for redistricting


The Supreme Court on Tuesday heard a challenge to a key section of the Voting Rights Act, giving the conservative majority another chance to gut the 1965 law aimed at combating racial discrimination in voting.

The case concerns the US congressional map that Alabama drew after the 2020 census, but the questions the justices are now considering could redefine how the Voting Rights Act can be used to challenge retrenchment plans in court.

Much of the two-hour oral argument was spent with conservatives testing how broadly or narrowly they should go to uphold the Alabama map, which lower courts have ruled discriminatory against black voters. In a 5-4 decision, the Supreme Court halted court orders that would have redrawn the map for the 2022 election.

Attorneys for black voters who challenged Alabama’s map, as well as U.S. Attorney General Elizabeth Prelogar, warned the judge that seemingly minor changes to how courts handle VRA cases would make it extremely difficult for minority voters to challenge discriminatory maps in court. This, in turn, can weaken the political power of voters of color, reducing minority representation in Congress and state legislatures.

Here are the takeaways from Tuesday’s oral arguments in Merrill v. Milligan named:

After a rough start for its attorneys on Tuesday, Alabama got some signs of winning the case, at least roughly. And even a supposedly modest ruling in favor of Alabama would have far-reaching implications for how the Voting Rights Act can be used to counter redistricting plans.

Chief Justice John Roberts and Justices Brett Kavanaugh and Amy Coney Barrett asked questions of the Alabama challengers, who suggested they were still unconvinced that the state’s requests in the case should be dismissed entirely.

The Supreme Court is being asked to revisit a test known as the Gingles test, named after a 1986 precedent for courts to decide whether a legislative map violates the Voting Rights Act.

The first part of that test requires legal challengers to a map to show a court that enough minority voters live in a place where a majority-minority district can be drawn, so that the district would be “reasonably constituted.”

Alabama wants the Supreme Court to bar challengers from using race when drawing maps that prove they can overcome that first hurdle in a challenge to redistricting the VRA.

Several conservative justices called this particular request in the case narrow, stating that it falls short of rewriting court precedent regarding the VRA. But voting rights advocates say that even this modest overhaul of how VRA redistricting cases work would drastically reduce the ability of minority voters to bring such cases.

A friend-of-the-court brief said that adopting Alabama’s proposal would allow multiple states to eliminate multiple districts with minorities in their statehouses. Abha Khanna, an attorney for a group of Alabama map challengers, pointed to the logistical problems that would arise if challengers were forced to use complicated computer simulations, as Alabama suggests, to show they can meet the first prong of the Gingles test. race in neutral mode.

However, the main swing votes on the court expressed sympathy with the idea.

If the court rules in Alabama’s favor, it would be the third time the Roberts Court has poked holes in landmark civil rights laws. Justice Elena Kagan spoke about the model in one of the highlights of the hearing.

“In recent years, the statute has not fared well in this court,” he said.

Kagan discussed the other two cases, 2013’s Shelby County v. Holder and 2021’s Brnovich v. DNC. The earlier case struck down Section 5 of the VRA, which required certain states and localities to get federal approval for voting policy changes, including redrawing maps. In it, conservatives pointed out that they were dropping Section 2, the part of the law that allows discriminatory voting laws to be challenged in court. But Brnovich struck down the use of Article 2 in cases of denial of the vote – or those involving voting rules – as the conservative majority emphasized the use of Article 2 in redistricting cases, known as vote dilution claims.

“Now here we are… you know, the classic Section 2 dilution claim,” Kagan told Alabama Attorney General Edmund LaCour. “And you’re basically asking us to dramatically reduce our 40-year record and make this very difficult to overcome. So what’s left?”

Alabama’s attorney general struck hard at the start of Tuesday’s arguments, as the court’s liberal wing took over. Justice Samuel Alito eventually threw him a lifeline by shifting the focus of the oral arguments to Alabama’s claims about the first prong of the Gingles test.

“Let me understand your — your basic argument, your broadest argument,” Alito said, while clarifying Alabama’s desire, as part of that thrust by VRA challengers, to show that it is a majority-minority district. he could get out without looking at the race.

Even after Alito told LaCour to stick to a narrower version of his argument, other conservatives on the court made it clear they had no appetite for others who would more strictly reshape how the Voting Rights Act is understood.

“You’re talking a lot about more far-reaching arguments,” Barrett told LaCour, who said he still needs more clarity on the “central argument” Alabama is presenting.

Justice Ketanji Brown Jackson, the court’s newest member and only black woman, showed Tuesday that it will be a unique path. This was particularly highlighted by a question he posed to LaCour, who used originalist arguments to strengthen the Voting Rights Act.

The key to Alabama’s claims is that lower courts are interpreting the VRA to make the law inconsistent with the Constitution’s prohibitions on racial discrimination.

“I don’t think that because race is taken into account that necessarily creates an equal protection issue,” Jackson said, pushing back at LaCour, “because I understood that we looked at the history and traditions of the Constitution. When I went to that level of analysis about what the framers and framers were thinking, It became clear to me that the framers themselves adopted the equal protection clause, the Fourteenth Amendment, the Fifteenth Amendment, in a race-conscious manner.”