The Voting Rights Act Has Survived Another Attempt on Its Life

The Voting Rights Act Has Survived Another Attempt on Its Life

The Voting Rights Act Has Survived Another Attempt on Its Life

In a surprising ruling, two conservative justices joined the Supreme Court’s liberal wing to keep Section 2 of the Voting Rights Act intact.

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Yesterday, in a 5-4 ruling, the Supreme Court affirmed Section 2 of the Voting Rights Act and ruled that Alabama could be sued over its racially gerrymandered congressional maps. Chief Justice John Roberts wrote the majority opinion for the court, joined by Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson, as well as alleged attempted rapist Brett Kavanaugh.

I cannot emphasize enough how shocked I was by the decision. This Supreme Court has spent the last decade systematically dismantling the Voting Rights Act, whittling down the most important piece of legislation in American history to a mere husk of what Congress intended. John Roberts has been the VRA’s chief antagonist during this time, ruling against it again and again. He voted to remove one of its core features in 2012’s Shelby County v. Holder; he voted to limit its applicability in 2021’s Brnovich v. Democratic National Committee; and he voted to ignore it all together in certain circumstances in 2019’s Rucho v. Common Cause. Here, he had a chance to deliver the coup de grâce to the act by declaring it functionally unconstitutional. But he blinked.

The case that gave Roberts the opportunity to finish off the VRA is called Allen v. Milligan, aka Merrill v. Milligan (the name changed because a man named Wes Allen became the Alabama secretary of state in 2023, replacing John Merrill, who was term-limited out). At issue was the redistricting plan Alabama drew up after the 2020 Census. Alabama put forward a map that had only one majority-minority district among its seven congressional districts. But the state is roughly 27 percent Black and could easily have contained two majority-minority districts. Moreover, the Black people who could have made up a second majority-minority district were geographically cohesive. That means that Alabama wouldn’t have had to pull in pockets of Black people living all across the state to create the district; instead, they could have created a second predominately Black district by keeping intact the so-called Black Belt (an east-west band, stretching across the former Confederacy, where Black folks have been traditionally allowed to live by their oppressors).

But rather than preserve this geographic coherence and make a second majority-minority district, Alabama map makers “cracked” the Black Belt district by essentially orienting its congressional maps along a north-south axis. This orientation preserved a predominately white Gulf Coast district, while splitting up the Black Belt district.

The map was put forward in 2021 and was immediately challenged by voting rights advocates. A federal district court ruled that Alabama’s maps violated Section 2 of the Voting Rights Act. Section 2 is the part of the act that makes racial discrimination illegal in voting laws, practices, or maps. While the 15th Amendment makes racial discrimination in voting unconstitutional, it doesn’t define what discrimination is, and it doesn’t provide anybody with a means to sue to protect their voting rights. As white people proved again and again after the Civil War, the 15th Amendment is meaningless if there is no way to enforce it. The VRA, and Section 2 specifically, has provided that method of enforcement. Section 2 is what gives the Voting Rights Act its teeth, and the Voting Rights Act is what makes the 15th Amendment a constitutional principle states have to respect, as opposed to a constitutional suggestion this country ignored for nearly 100 years.

The white folks running Alabama never seem to want the 15th Amendment to be real (they also don’t seem enthused about the 14th Amendment, or the 13th). In this case, they argued that their maps didn’t violate Section 2 because they could have come up with the same map without actively trying to discriminate against Black voters. As proof, Alabama offered evidence that computer simulations would also draw maps that don’t produce two majority-minority districts, even if the computers had been programmed to ignore the racial geography of the state. They argued that the fact that the state’s map does happen to discriminate against Black voters should be legally irrelevant.

In case that argument didn’t fly, Alabama also argued that Section 2 was unconstitutional as applied to state redistricting. In Alabama’s view, the 15th Amendment protects only direct acts of vote denial on the basis of race; it does not empower the federal government to stop states from making the votes of Black folks meaningless.

A federal district court rejected both of Alabama’s arguments and temporarily blocked Alabama from using its new map, but in February 2022 the Supreme Court intervened, overruled the district court, and allowed Alabama to use the map for the 2022 midterm congressional elections, pending a full hearing in front of the Supreme Court. Alabama did, and its racist maps are partially responsible for the Republicans’ small majority in the House of Representatives.

But now that the political damage has been done, it turns out the district court was right all along. The Supreme Court let Alabama hold a racially gerrymandered federal election that influenced the balance of power in the House, but now, after the election is over, it’s willing to change its mind and do something about Alabma’s racist maps. Or one of its justices is. Roberts would have prevented Alabama from using the bad maps in the last election, but Kavanaugh voted with the conservatives in 2022 to let Alabama use its maps then, giving the state its definitive if temporary victory. Wonderful system we’ve got here.

Still, yesterday’s affirmation of the VRA was undeniably a welcome turn of events, no matter how late. Again, Roberts could have scuttled the whole law, but he didn’t. He could have let Alabama invent an entirely new standard that would have allowed states to escape Section 2 as long as they could find a programmer savvy enough to make a computer spit out a racist map without coding “make sure this hurts Black people” into the algorithm—but he didn’t. Instead, Roberts applied the Supreme Court’s own precedents for hearing Section 2 challenges and rejected Alabama’s map. (Those precedents mainly come from a 1986 case called Thornburg v. Gingles, which lays out a multifactorial test to see if a district map violates the VRA—a test the plaintiffs suing Alabama over its map easily met.)

I can only speculate as to why Roberts rejected arguments against the VRA that he usually supports, but my guess is that it has something to do with computers. My read on Roberts is that he hates computers, math, and anything that smells like a technocratic solution to gerrymandering. In both Rucho and Gill v. Whitford, Roberts could not be convinced that computer simulations provide insight into whether a districting scheme is constitutional.

In this case, Alabama relied heavily on computer simulations, which it claimed showed that its map wasn’t racist, but Roberts simply wouldn’t go for it. He wrote: “[N]either the text of §2 nor the fraught debate that produced it suggests that ‘equal access’ to the fundamental right of voting turns on computer simulations that are technically complicated, expensive to produce, and available to ‘[o]nly a small cadre of university researchers [that] have the resources and expertise to run’ them.’” At core, he wants judges to make decisions about how much racism is allowed, not computers.

Roberts’s Luddite sensibilities may have contributed to saving the VRA this time, but that doesn’t make the act safe from him or his court in the future. For starters, at least four other justices agreed with Alabama’s attempt to render Section 2 meaningless, chief among them Justice Clarence Thomas, who wrote his usual screed about how the 15th Amendment shouldn’t apply in cases of racist gerrymandering. According to Thomas, pretty much the only constitutional protection Black people should get is from state officials who physically bar Black people from polling stations. He has no problem with vote dilution, or states using gerrymandering to make Black political power disappear. Thomas’s 50-page dissent also included a lot of complaining about Alabama’s being mandated to create majority-minority districts, but since that’s not actually what the Roberts or the Voting Rights Act is forcing Alabama to do (they’re forcing Alabama to not discriminate against a Black district by cracking it), Thomas’s argument here is less about legal principles and more about spinning an anti-voting narrative that can be picked up by Fox News.

Then there’s Brett Kavanaugh, who joined Roberts’s opinion but wrote separately to emphasize that he would be interested in hearing arguments that Section 2 should lapse after a certain amount of time. I have no idea when Kavanaugh thinks racism in voting rights will be eradicated, but I’m sure he’ll think racism has been solved long before it actually is.

The upshot is that, while the Voting Rights Act remains very much under threat from the Supreme Court and from states that would deny voting equality to all their citizens, the act still lives. Conservatives may eventually shatter the VRA and stuff the 15th Amendment back into a locker where it will not be allowed to operate, but (to channel Aragorn, son of Arathon) it is not this day!

This day, the Voting Rights Act survives. And so we have another opportunity to elect leaders who will restore it to what it used to be, and reform the court so that it cannot be attacked again.

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