When are majority-Black voting districts required? In Alabama case, the justices will review that question.

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https://www.scotusblog.com/2022/10/when-are-majority-black-voting-districts-required-in-alabama-case-the-justices-will-review-that-question/

 

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Amy Howe

Alabama's congressional map. The only majority-Black district is the 7th District, which has a 55% Black voting-age population. (Source: davesredistricting.org)

Section 2 of the Voting Rights Act bars election practices that result in a denial or abridgement of the right to vote based on race. On Tuesday, the Supreme Court will revisit how that provision, a landmark protection whose broad language is hotly contested, applies to redistricting plans that are challenged as weakening the collective voting power of Black people.

The case, Merrill v. Milligan, involves Alabama’s 2021 redistricting map for its seven seats in the U.S. House of Representatives. A three-judge court that included two judges appointed by President Donald Trump ruled that the state’s map likely violated Section 2. The state is asking the Supreme Court to overturn that decision, arguing that the lower court’s interpretation of Section 2 would itself require the state to discriminate based on race. But the challengers counter that if the justices accept the state’s argument, it could “decimate minority representation across the country.”

Background

Alabama created the redistricting plan at the center of the case after the 2020 census. Roughly 27% of the state’s residents are Black, but only one of the seven districts in the plan is a majority-Black district.

A group of registered voters, along with the Alabama chapter of the NAACP and Greater Birmingham Ministries, a multifaith community organization, went to federal court to challenge the map. They argued that the state had illegally packed many Black voters into a single district in a part of Alabama known as the “Black Belt,” a mostly rural area running across the middle of the state that was named for its black soil but also has a large Black population. In that district, nearly 60% of registered voters are Black, but, they said, the state’s new plan dispersed Black voters in the rest of the Black Belt into several other districts, each of which was made up of fewer than 31% Black voters.

The effect of the map, according to the challengers, is to minimize the number of districts in which Black voters can elect their chosen candidates. The legislature could, and should, have created a second majority-Black district, the challengers contended, and the state’s failure to do so violated Section 2.

In January of this year, a three-judge district court (which Congress has designated to hear challenges to the constitutionality of redistricting plans) agreed that the state’s new congressional map likely violates the Voting Rights Act. It gave the state two weeks to draw a new map that includes two majority-Black districts.

The state filed an emergency appeal to the Supreme Court, asking the justices to freeze the lower court’s order. A divided Supreme Court in early February granted the state’s request, a move that effectively allowed Alabama to go ahead with its preferred map for the May 2022 primary elections and the November 2022 general elections. The justices also set the case for oral argument in the fall.

Justice Elena Kagan, in an opinion joined by Justices Stephen Breyer and Sonia Sotomayor, dissented from that ruling – which, she wrote, “forces black Alabamians to suffer what under” the Voting Rights Act “is clear vote dilution.”

Chief Justice John Roberts filed a separate dissent. The lower court, he wrote, properly applied current voting-rights law under the Supreme Court’s 1986 decision in Thornburg v. Gingles, the seminal case governing claims that redistricting plans illegally dilute minority votes. But Roberts also wrote that Gingles and subsequent decisions on vote-dilution claims “have engendered considerable disagreement and uncertainty.” So while Roberts disagreed with the majority’s decision to put the lower court’s order on hold, he agreed with the decision to hear oral argument in the dispute.

The parties’ arguments

In its brief on the merits, the state stresses that Section 2 bars discrimination against voters based on race. But Section 2 does not, the state continues, impose “an affirmative obligation upon the States to ensure that wherever a majority-minority district can be drawn, at whatever sacrifice to race-neutral redistricting criteria, it must be drawn.” Indeed, the state writes, interpreting Section 2 to require the state to create a majority-Black district would violate the Constitution, because that approach would entail “racial targets” and “race-based sorting” in violation of the 14th and 15th Amendments.   

The key question, according to Alabama, is whether the political process is “equally open” to all voters, regardless of race. Its map passes that test, the state insists, because it was drawn using race-neutral redistricting criteria, such as the desire to adhere as closely as possible to previous district lines. Plaintiffs challenging a redistricting plan, the state contends, cannot prevail unless they show that the plan can only be attributed to racial discrimination.

Plaintiffs must also show, the state continues, that they can create a new map with an additional majority-minority district without prioritizing race. The fact that the plaintiffs can draw a majority-minority district by prioritizing race, the state says, “reveals nothing about whether a State’s enacted map discriminates against them.” In this case, the state insists, “the only way” that the challengers could create a majority-Black district “was to intentionally sort Alabamians by skin color,” creating “two radically redrawn and sprawling districts.”

Calling Section 2 “one of the most effective prohibitions on discrimination in voting that Congress has ever enacted,” the challengers and the Biden administration urge the justices to allow the lower court’s ruling to stand. The state’s argument, they say, boils down to the idea that “race should play no role whatsoever” in the analysis of whether a redistricting plan violates the VRA. That position, they tell the court, would “rewrite” Section 2 and “overturn decades of settled precedent.”

Section 2, the Biden administration contends, plays a “limited but essential role”: It requires the consideration of race only when plaintiffs have shown that “pervasive racial politics would otherwise deny minority voters equal electoral opportunities.” That is the situation here, the challengers explain, because voting in Alabama is intensely polarized. As a realistic matter, they write, Black voters can only elect Black candidates if they make up a majority (or something very close thereto) in a district. Indeed, they note, no Black candidate has ever been elected to Congress in Alabama from a majority-white district.

The challengers and the Biden administration push back against the state’s suggestion that Section 2, as currently applied, improperly requires states to prioritize race above other race-neutral criteria in redistricting. The Supreme Court’s cases already counsel against prioritizing race in redistricting, they say; a state does not violate Section 2 just because it didn’t create as many majority-minority districts as possible. But if the justices are concerned that lower courts are not applying the proper test when dealing with cases like this, they add, “the answer would be to reinforce those limitations – not to jettison the standard.”

 

 

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Participating in her second day of oral arguments on Tuesday, Supreme Court Justice Ketanji Brown Jackson tangled with Alabama’s solicitor general in a case challenging Section 2 of the Voting Rights Act, which bars racial discrimination in voting policies.

The justices agreed to review a lower court’s opinion that found Alabama’s redrawn 2021 congressional map was likely a violation of the law because it includes only one majority Black district out of seven, despite the fact that Black voters account for 27% of the state’s voting population.

In January, the three-judge panel — including two district judges appointed by former President Donald Trump — ordered a new map to be drawn with an additional majority Black district, which likely would have gained Democrats a seat in the U.S. House of Representatives this fall. The order was frozen by the Supreme Court, which agreed to hear the state’s appeal.

 

Ketanji Brown Jackson delivers remarks at the White House on April 8 after her confirmation to the Supreme Court. (Kent Nishimura/Los Angeles Times via Getty Images)

 

In court Tuesday, Edmund LaCour, Alabama’s solicitor general, argued that the map was “race-neutral,” and that the order for a new map would put the state at odds with the Equal Protection Clause of the Constitution because it would have to prioritize race in redistricting.

Jackson wondered why LaCour would make such a claim given that framers of the 14th Amendment — which guaranteed equal protection to all people, including former slaves — did not intend it to be “race-neutral or race-blind.”

“I don’t think we can assume that just because race is taken into account that that necessarily creates an equal protection problem,” Jackson said.

She said the framers themselves adopted the Equal Protection Clause “in a race-conscious way.”

“The entire point of the amendment was to secure rights of the freed former slaves,” Jackson said.

Jackson, the court’s newest justice and first Black woman ever to sit on its bench, then cited the Civil Rights Act of 1866, “which specifically stated that Black citizens would have the same civil rights as enjoyed by white citizens.”

“I don’t think that the historical record establishes that the founders believed that race neutrality or race blindness was required,” she said. “That’s the point of that act, to make sure that the other citizens, the Black citizens, would have the same [rights] as the white citizens.”

The case is one of nine the Supreme Court has agreed to hear involving a range of major issues, including affirmative action, the rights of LGBTQ people and election laws.

A decision is expected to come later this term.

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This is how the Voting Rights Act ends

Published: Oct. 04, 2022, 5:00 a.m.

5-7 minutes

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This is a column.

When I was a kid in rural Alabama, I didn’t enjoy professional wrestling — or rasslin’ — nearly as much as my friends seemed to. Before the bell rang at school, I’d hear breathless reports of what Rowdy Roddy Piper had done the night before, but for me, there was something about a predetermined contest that took the excitement out of the so-called sport.

The few times I tried to get into it, I figured out pretty early on who was going to win.

And today, there’s something equally less thrilling about to happen inside this courthouse across the street from the U.S. Capitol. Above the front door, it says “Equal Justice Under Law” etched into the facade, but I can’t shake the feeling it’s only that — a facade.

This here has all the markings of a rigged game. But unlike those matches on TBS so long ago, this one will have consequences — for Alabama.

And for America.

On Tuesday, the state of Alabama will defend its congressional district map before the United States Supreme Court.

Few expect Alabama to lose. The only question is what this country looks like after the state wins.

Earlier this year, a three-judge panel — including two Trump appointees — found that Alabama had violated the Constitution by drawing too many Black people into the state’s only majority-Black congressional district. It was a surprising outcome unfavorable to the state’s Republican supermajority.

The judges ordered the Alabama Legislature to draw a new district map, but the Legislature — which had drawn the original map in a matter of days — said it couldn’t meet the court’s deadline. The three-judge panel gave the state a deadline, after which it would draw the state’s new congressional map for it.

That’s when the U.S. Supreme Court intervened.

Using its so-called “shadow docket,” the court stayed the lower court ruling until it could hear the case — after Alabama’s 2022 primaries. For now, the Supreme Court reinstated the Alabama Legislature’s district map. And the court may not deliver a ruling in the case until next year, well after the general election next month.

The higher court’s intervention sent a clear message. If Constitutional rights or fair representation for Black voters were at risk, the court cared less about those things than it did getting another election done with.

Putting something on the back burner says everything about where it lands on your list of priorities.

But this case isn’t only about how many seats one party or the other has in Alabama and in Congress. It’s about the Voting Rights Act, or what’s left of it. And that’s what’s really at stake when the court hears oral arguments today.

Already, Alabama has played an outsized role in the voting rights of Black Americans. It was the march from Selma to Montgomery that set the Voting Rights Act on its way into law.

And Alabama is where, too, the Voting Rights Act might meet its end.

Already, Shelby v. Holder gutted the pre-clearance provisions of the law, which required states and counties with a history of racial discrimination and voter suppression to seek the Justice Department’s permission before changing district lines or voting practices.

No sooner had the court struck that part of the law than Alabama had enacted voter ID and it attempted to close drivers license offices in predominately Black counties.

Now comes our home state for the rest of the VRA — Section 2, which draws a fine line regarding drawing districts.

Section 2 prohibits states from diluting the influence of minority voters. The plaintiffs in Merrill v. Milligan have argued that the latest district map packs too many Black voters into one oddly shaped congressional district, winding from downtown Birmingham to Tuscaloosa to the Black Belt and back around to Montgomery all while avoiding GOP enclaves in Shelby County and other suburbs. The drawing of Alabama’s 7th District effectively limits the influence of Black voters in Alabama when there are enough Black voters to justify two majority- (or near-majority) Black districts.

The trouble here is — and this is the metal folding chair propped conspicuously outside the ring — is that it’s hard to tell Alabama, on one hand, it must give Black voters fair influence in congressional elections but then, on the other hand, tell the state it can’t draw district lines based on race.

The signs are there that the conservative majority on the court could use this case to gut Section 2 and severely limit what’s left of the law.

At which point, there’s no guarantee the state will not act as it did before, using its new license to the advantage of its majority partisan interests.

And as Alabama goes, so goes the nation.

This script seems to be written.

The winner is set.

But this ain’t rasslin’.

When it’s over, somebody’s going to get hurt. For real.

Kyle Whitmire is the state political columnist for the Alabama Media Group, 2020 winner of the Walker Stone Award, winner of the 2021 SPJ award for opinion writing, and 2021 winner of the Molly Ivins prize for political commentary.

You can follow his work on his Facebook page, The War on Dumb. And on Twitter. And on Instagram.