The Constitution has been amended three times to achieve the universal suffrage its wealthy white male authors denied everyone other than themselves. The 15th Amendment prohibited denying the vote on the basis of race. The 19th Amendment prohibited denying the vote on the basis of sex. The 24th Amendment eliminated the poll tax “or any other tax” that may be used to erect a financial barrier to voting. But these amendments meant functionally nothing until the passage of the Voting Rights Act of 1965. It’s the Voting Rights Act that makes these constitutional amendments “real” by providing a way to sue white male governments who seek to suppress or deny the vote in violation of these amendments. Without the Voting Rights Act, voting rights are just suggestions, easily ignored by committed white supremacists operating at the state level. It doesn’t help minority voters to have constitutional amendments if the white people running the place won’t allow voters to prove that they’ve been violated.
That is why the Voting Rights Act is my pick for the most important piece of legislation in American history. And that is why conservative justices on the Supreme Court have made it their mission to destroy it.
This term’s attack on the Voting Rights Act came Tuesday, in a case called Merrill v. Milligan. At issue is a districting map instituted by Republicans in Alabama that racially discriminates against Black voters. The map was drawn to have one majority-minority district out of seven congressional districts. Since Black people make up 27 percent of the population in Alabama, it makes obvious sense for there to be two majority-minority districts (two of seven is 28 percent, for those who haven’t seen a TI-87 since the 1990s).
Instead of following the math, Republicans “cracked” the second majority-Black district, and split it up into a number of others, diluting the voting power of the Black population of Alabama, while keeping white power intact. In case you are wondering why we can’t all get along, this racism is politically advantageous for Republicans. In 2020, white voters supported Donald Trump to the tune of 77 percent, while 89 percent of Black voters supported President Joe Biden.
Alabama’s gerrymander was so racist that a panel of the US Court of Appeals for the 11th Circuit ruled that the maps violated Section 2 of the Voting Rights Act, which prohibits the discrimination or dilution of votes on the basis of race. That three-judge panel included two Trump judges, but they unanimously agreed that Alabama’s maps were so flagrantly in violation of the VRA that it wasn’t a close case.
But the extremist conservatives on the Supreme Court thought differently. First of all, back in February, the Supreme Court prevented the 11th Circuit judgment from taking effect and ordered the reinstatement of the racist maps for this election cycle. At the time, alleged attempted rapist Brett Kavanaugh said that we were too close to the midterm elections to force Alabama to change its maps. Yesterday, the court returned to the question of whether Alabama violated the VRA at all.
This ain’t a fairy tale: The racist map preferred by Alabama Republicans will win the day once the court renders its decision. We are dealing with the most extreme conservative court in generations, and that extremism extends toward a hostility to voting rights generally and the voting rights of minorities specifically. This court has pre-decided that diluting the Black vote through gerrymanders is okay, and there is nothing more than a fool’s hope to believe they will rule otherwise.
But how the Supreme Court makes Alabama Republicans win is an open and important matter. Some paths towards Republican victory are more troubling than others. Alabama defends its racist map along two parallel tracks:
- Black voters do not live close enough together to make a second majority-minority district.
- Black voters cannot prove the map is racist.
The first argument is a more limited and normal argument. The Supreme Court has a precedent case, Thornburg v. Gingles, that lays out a detailed and fact-intensive test to figure out when a map is so gerrymandered that it violates Section 2. One of the factors in Gingles is that any proposed districts have to be contiguous and geographically compact. Alabama argues that the Black voters for the second proposed majority-minority district are spread out, along an east/west line, in what constitutes a “Black belt.” Those familiar with racial geography know that the “Black belt” is not limited to Alabama—it’s a cluster of predominately Black neighborhoods that sweeps from East Texas through to coastal Virginia, and is the result of historical patterns of farming, slavery, and housing discrimination. Alabama argues that grouping together voters living in the parts of the Black belt as it comes through Alabama would not be a “compact” congressional district.
There are many problems with Alabama’s argument, and nearly all those problems were brought out in oral arguments by the new justice, Ketanji Brown Jackson. In only her second day on the job, Justice Jackson pointed out that historic housing discrimination explained why the Black voters clustered along an east/west trajectory, and argued that keeping this contiguous community together was appropriate under the Voting Rights Act. Meanwhile, Justice Sotomayor asked probative questions about why Alabama split up communities of color in the central part of the state, but did not split up predominantly white communities spread along the Gulf Coast of Alabama.
Alabama’s lawyer didn’t offer good answers for these questions, but Justices Kavanaugh and Amy Coney Barrett both asked questions suggesting that “compact” districts were important, even though they both admitted that they didn’t really know what “compact” meant as a legal concept. Still, if all that happens is that the six conservatives rule that Section 2 wasn’t violated because there was no “compact” way to draw a second Black district, that would be as close to a “win” as Black voters could hope for in front of a 6-3 court.
That’s because the alternative is that Justice Samuel Alito gets his way and the conservatives make Section 2 violations nearly impossible to prove. Gingles offers a difficult enough standard as it is, but, to even get their foot in the door, disenfranchised Black voters have to show that a different map could be drawn that would be more fair. At oral arguments, Alito seemed to favor an Alabama argument that such a map must be drawn (by an expert or, more likely, an expert using a computer program) using only “race-neutral” inputs.
That may seem like an easy thing, but it’s not, because race impacts a number of factors. Everything from party affiliation to earned income to housing prices can in some ways be a reflection of race. Indeed, it’s hard to imagine a so-called “race-neutral” factor that doesn’t intersect with race in some way. For instance, one of Alabama’s arguments was that districts should respect geographical features, like rivers. But if you ask the computer to respect rivers flowing from North to South, the computer will necessarily crack apart Black communities organized on an East/West axis.
Of course, the Republican pushers of what they call race-neutral maps know this. Asking Black voters to produce a map that results in more minority representation without the computer’s being allowed to know where minorities actually live isn’t just intellectually foolish; it’s devious and designed to make it so Black people cannot bring challenges under Section 2 in the future.
Justice Jackson used her time to explain the problems I just highlighted with this inquiry, but, more importantly, she also argued the objective point that there’s nothing in the Voting Rights Act or the Constitution that requires Black people to prove that a gerrymander is racist with a “race-neutral” control map. They only have to prove that a more-representative map is possible, then it’s on the map makers to show that their less-representative map serves some other legitimate state interest. The race-neutral requirement doesn’t exist; it’s one that Alito is trying to invent in real time, to further weaken the VRA.
But Jackson and the other liberals are in the minority. I counted two other conservatives in Alito’s camp (Clarence Thomas, who asked one question and then went silent, and Neil Gorsuch, who was silent all together), while Chief Justice John Roberts, Kavanaugh, and Barrett seemed at least open to the more narrow idea that the proposed second majority-minority district was too disperse to be “compact.” Either flavor results in a 6-3 win for Alabama’s racism, but the narrow way preserves the possibility that other gerrymanders will be deemed too racist in the future.
Unfortunately, a narrow dilution of their right to vote is the best hope for Black voters in Alabama. Despite the VRA, despite our constitutional amendments, the fundamental principle that voting rights cannot be abridged on the basis of race is something that conservatives on the Supreme Court just don’t agree with. The conservatives have already gutted Section 5 of the Voting Rights Act, which used to prevent the former Confederate states from changing their voting rules to, say, prohibit voters standing in line from being served water in Georgia. In 2021, the court ruled that a “little bit” of racism didn’t not violate the Section 2 prohibition on racism. Now, this case could make it nearly impossible to prove that racism exists in the first place. Conservatives don’t have to overturn the Voting Rights Act; they can just make it irrelevant.
I’d suggest passing and ratifying another amendment specifically making racist gerrymanders unconstitutional, but I know that, in due time, conservatives would just ignore such an amendment too. Conservatives don’t think every person’s vote should count equally—they literally never have.