The Voting Rights Act of 1965—the crown jewel of the civil rights movement—has two strikes against it at John Roberts’s Supreme Court. Strike three is likely in a new case the Court will hear on October 4.
The first strike came in 2013 when the Court curtailed the act in Shelby County v. Holder. That case invalidated the portion of the act that determined which jurisdictions must seek preapproval for voting changes because they have a history of discrimination. Because of the Shelby County ruling, states and local governments with a record of racism are free to enact restrictive voting rules and unfair redistricting maps without meaningful oversight.
Then, just last year, the Court in Brnovich v. DNC made it much harder for plaintiffs to use the Voting Rights Act to fight election rules with a discriminatory effect on minority voters. Section 2 of the act is a nationwide provision barring discrimination in the voting process. The conservative majority in Brnovich created five “guideposts” that plaintiffs must satisfy in cases invoking Section 2. Justice Samuel Alito essentially made up these guideposts out of thin air. They are not part of the statute itself, and they create significant hurdles for plaintiffs and stack the deck in favor of state laws. For example, under Brnovich, a voting law or regulation that burdens only a few people isn’t that concerning. An election practice that’s been in force for a while likely doesn’t violate the act, even if the discriminatory effects are evident in today’s elections.
The third case in this grim trio, Merrill v. Milligan, is now before the Court. It’s another Alabama case that could severely limit the act’s protections for minority voters during redistricting. It could even lead to the Court declaring Section 2 unconstitutional.
Merrill involves a complex legal issue on how courts construe Section 2 of the act for claims of minority vote dilution. Essentially, plaintiffs have long used Section 2 to ensure that states do not draw district lines, making it harder for minority communities to come together to elect their preferred candidates. Map drawers can employ sophisticated technology to “pack” minorities into a few districts, giving them no influence in other places, or to “crack” areas of high minority populations into separate districts so they can’t control them. In this way, the map dilutes their power to come together to elect their preferred candidates.
Every 10 years, of course, states and localities redraw their legislative district lines to respond to the U.S. Census. The primary legal criterion these jurisdictions must satisfy is that districts’ populations must be roughly equal. Under Section 2, the Court has also long imposed a legal standard that a map must not produce a discriminatory effect by diluting the strength of minority voters. Put more concretely, if a state has a significant minority population who live near each other, the legislative maps should include districts that ensure that minority voters can elect their preferred candidates. It’s a necessary response to decades of disenfranchisement and lack of representation.
When Alabama drew congressional maps after the 2020 census last year, it had seven congressional districts. The Republican-controlled state legislature passed a map in which only one of the seven districts had a population with a majority of Black voters. In legal terms, one of the seven districts—that’s 14 percent—is “majority-minority.” But Black Alabamans make up about 27 percent of Alabama’s total population. The dilution results from splitting up the Black population so only one district might elect a minority-preferred candidate when it would be easy to draw two majority-controlled districts instead.
This evidence led a three-judge federal court—composed of two Donald Trump nominees and a Bill Clinton nominee—to conclude in a lengthy and thorough opinion that Alabama’s map violated the Voting Rights Act. The court ordered the legislature to draw a new map with two majority-Black districts.
In February, the Supreme Court put that order on hold, though the majority didn’t provide any reasons for its decision. The result is that Alabama can use the one-Black-district map in the 2022 midterm. The same basic process played out in Louisiana, with a lower court striking down the state’s map and requiring the legislature to draw a new one with an additional majority-Black district. The Supreme Court put that order on hold, too.
The Court will soon determine whether it should scuttle decades of precedent in how it uses Section 2 to resolve redistricting disputes.
Under current law, to prove a Section 2 violation, a plaintiff must satisfy the “Gingles” preconditions, named after the 1986 case Thornburg v. Gingles. That case offered a framework for using Section 2 to establish that a redistricting plan dilutes the strength of minority voters. The plaintiff must demonstrate that (1) minority voters are geographically compact and numerous enough to constitute a majority in a differently drawn district; (2) minority voters in the area are politically cohesive, meaning that they tend to vote for the same kinds of candidates; and (3) the white majority usually votes to defeat the minority-preferred candidate. A plaintiff’s failure to prove any of these prongs dooms the case. Once the plaintiff proves these preconditions, the inquiry shifts to the “totality of the circumstances,” which means that the court must consider all other factors that suggest minority voters have a more challenging time electing their preferred candidates.
The lower court found that the evidence in the Alabama case easily met these standards. The map drew lines through the state’s so-called Black Belt (named after the fertile black soil in the southern part of the state) and the majority-Black city of Montgomery, splitting up those communities of interest. A different map that kept these voters together would produce two majority-Black districts.
Alabama’s defense of the map relies on a legal theory that makes it virtually impossible for plaintiffs to satisfy the first Gingles factor of whether a different map could include additional majority-Black districts. The state argues that plaintiffs can’t consider race at all. Plaintiffs are supposed to prove that another map would offer stronger minority representation without ever thinking about race. Otherwise, the state argues, the act itself is unconstitutional. The state is trying to have it both ways: Either the Supreme Court must adopt a standard that makes it impossible for plaintiffs to win, or the act violates the Constitution by focusing too much on race. It’s making this argument for a statute whose very purpose is to protect minorities and promote democracy. Heads I win, tails you lose.
This argument is contrary to precedent and utterly circular. The Court has long ruled that the act prohibits minority vote dilution. The way to prove vote dilution is to show that the legislature could have drawn the map without splitting politically cohesive minority voters. It’s virtually impossible to argue that a map is unfair to minority voters without considering where they live and how they typically vote. It would be a futile task—which is exactly the point. And there is no merit to declaring the Voting Rights Act unconstitutional unless the Court overturns decades of precedent saying otherwise. Surely, Congress is justified in attempting to redress the history of racial discrimination and its continued effects.
The Court took a cleaver to the Voting Rights Act in its last two significant rulings. If the Roberts Court rules for Alabama, as seems likely, the case will complete a sorry trilogy.