Several of the Supreme Court’s conservative justices on Tuesday seemed open to raising the legal bar for challenging electoral maps under the Voting Rights Act, which could have the effect of narrowing protections for voters of color.
During oral argument, the court’s conservatives wrestled with what legal test should apply to determine whether the mismatch between Alabama’s Black population and its representation in Congress amounts to illegal discrimination.
Although the Republican-appointed justices’ questions fell well short of telegraphing a clear outcome, the Supreme Court earlier this year granted an emergency ruling in the case for Alabama Republicans, and over the last decade has steadily reined in the sweep of federal voting protections.
The court’s three liberals, meanwhile, signaled their clear interest in preserving a longstanding approach to challenges brought under Section 2 of the Voting Rights Act — one which places significant weight on whether voting maps have the result of weakening a minority group’s power to elect their preferred candidates.
“This is an important statute,” Justice Elena Kagan, one of the court’s liberals, said of the Voting Rights Act. “It’s one of the great achievements of American democracy to achieve equal political opportunities, regardless of race, to ensure that African Americans could have as much political power as white Americans could. That’s a pretty big deal.”
The law was strengthened when Congress amended the Voting Rights Act four decades ago to clarify that it was not necessary to prove discriminatory intent in order to successfully challenge a racial gerrymander, Kagan added.
Among the court’s conservatives, Justice Samuel Alito seemed willing to go the furthest in retooling the legal standard for racial gerrymander challenges to make it more stringent, even as he rejected what he described as Alabama’s more “far-reaching” arguments.
Alito appeared eager to revisit the court’s 1986 decision in Thornburg v. Gingles, which laid out a framework for making an initial assessment of vote-dilution, suggesting the preliminary legal hurdle is too low.
“As a practical matter, in every place in the south and maybe in other places, if the first Gingles condition can be satisfied, will not the plaintiffs always run the table?” Alito asked the U.S. solicitor general. “Where can (the defendants) win?”
Chief Justice John Roberts at one point appeared open to revisiting the standard used to assess racial gerrymander challenges in court, as did Justice Brett Kavanaugh. Earlier this year, Roberts criticized the lack of certainty surrounding the current legal test, a sentiment that was echoed in an opinion by Alito and Kavanaugh.
Justices Clarence Thomas and Neil Gorsuch, two of the court’s most conservative members, asked only one question between them during Tuesday’s argument, though both previously joined a bare majority in favor of Alabama Republicans in an emergency ruling in the case.
The dispute heard Tuesday arose after a group of Black Alabama voters brought a legal challenge under Section 2 of Voting Rights Act against the state’s GOP-crafted voting map. The state’s population is 27 percent Black, but just 1 in 7 of its U.S House districts, or 14 percent, is majority Black.
The challengers allege that Republican state lawmakers used map-drawing techniques known as “cracking” and “packing,” which have been used in the past for racial gerrymandering, to draw a map that diluted the power of Black voters.
“Cracking” and “packing” involve splitting up a cluster of an opposing party’s likely voters among several districts where their votes are unlikely to sway the outcome of a race, as well as packing those voters into a small number of districts to make them dilute their votes in other districts.
In January, a unanimous three-judge panel in Alabama, which included two appointees of former President Trump, sided with the Black voters challenging the state’s new map. The judges found the Alabama map ran afoul of the Voting Rights Act and ordered the state’s GOP mapmakers back to drawing board to increase to two the number of districts featuring majority Black representation.
The ruling prompted Alabama Secretary of State John Merrill (R) and top GOP lawmakers to file an emergency request to the Supreme Court. Operating under its so-called shadow docket, the court in a 5-4 vote agreed in February to halt the lower court ruling, with Chief Justice John Roberts joining the court’s three liberals in dissent. The stay order allowed the alleged racially gerrymandered map to remain effective through the 2022 primary election.
Additionally, the court agreed to formally hear the case, which it did Tuesday when Alabama urged the justices to permanently reinstate the map the lower court deemed racially discriminatory.
Justice Ketanji Brown Jackson, who in her second day on the bench has already emerged as one of the court’s most active questioners, pushed back forcefully against the Alabama solicitor general’s suggestion that drawing a second majority-Black district in the state could violate the Constitution. Jackson said the 14th Amendment and Voting Rights Act should be seen as acting in harmony with one another.
“It was drafted to give … a constitutional foundation for a piece of legislation that was designed to make people who had less opportunity and less rights equal to white citizens,” she said.
“So with that as the framing and the background,” she continued, “I’m trying to understand your position that Section 2, which by its plain text is doing that same thing, is saying you need to identify people in this community who have less opportunity and less ability to participate and ensure that that’s remedied, right?”
Updated at 2:58 p.m.