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Demonstrators protest against gerrymandering at a rally in front of the U.S. Supreme Court on March 26, 2019. (Photo: Evelyn Hockstein/Washington Post via Getty Images)

Supreme Court Poised to Shred What's Left of Voting Rights Act, Plaintiffs Warn

"If the court sides with Alabama," wrote a pair of plaintiffs in Merrill v. Milligan, "political opportunities for people of color will disappear."

Kenny Stancil

With the U.S. Supreme Court hearing oral arguments Tuesday in Merrill v. Milligan, a pivotal case about map-rigging in Alabama, plaintiffs and other advocates are warning that the court's far-right justices are poised to effectively legalize racial gerrymandering and dismantle what remains of the 1965 Voting Rights Act.

"Without protections from Section 2 of the Voting Rights Act, redistricting will be weaponized to strip Black communities of fair representation."

"If the court's right-wing supermajority has its way, Merrill v. Milligan will open the floodgates for racial gerrymandering across the country and diminish the political power of voters of color," Stand Up America deputy political director Reggie Thedford said Monday in a statement.

Although Black voters comprise nearly one-third of Alabama's population, the congressional map approved last November by the state's GOP-controlled Legislature contains just one majority-Black district out of seven total districts—the illegal result, civil rights advocates argued successfully in a lawsuit filed in federal district court, of "packing" most Black voters into a single district and "cracking" others across multiple districts. To date, no Black candidate in Alabama has ever won in a majority-white congressional district.

A trio of federal judges—including two appointed by former President Donald Trump—unanimously sided with the plaintiffs, ruling that Alabama's recently adopted congressional map unconstitutionally denies equal representation and likely violates Section 2 of the Voting Rights Act (VRA) by diminishing Black voters' ability to elect candidates of their choice.

As two of the plaintiffs—Evan Milligan and Khadidah Stone—wrote Monday in Slate:

After reviewing our arguments, the three judges agreed that Alabama's map discriminates by giving white voters—who are 63% of the population—total control over 86% of Alabama's congressional seats. The judges ordered Alabama to adopt a new map that respects the state's redistricting goals and contains two "opportunity districts" where Black voters' preferred candidates have a fair chance to compete for votes.

Many potential maps were shown to state officials to address this. But Alabama simply ignored them, instead appealing our win to the Supreme Court of the United States. SCOTUS then stayed the lower court's decision without full briefing or argument, and without addressing the district court's powerful finding of discrimination. This decision—which underscores the problematic nature of making such momentous decisions on the court's "shadow docket"—means that these midterm elections will continue to be tainted by a discriminatory map that dilutes Black voting power.

As the deeply unpopular high court takes up Merrill v. Milligan, the plaintiffs outlined "how Alabama plans to pursue victory in a case it could not win at home."

"First, Alabama claims that the VRA is unconstitutional as applied to congressional districts," wrote Milligan and Stone. "Second, Alabama is arguing that any use of race in redistricting is per se unconstitutional."

"Alabama is calling our plans discriminatory merely because our experts set out to show it is possible to draw two majority-Black districts," the pair continued. "The problem is that the Constitution does allow, and sometimes requires, legislatures to intentionally draw districts that recognize or protect communities of color."

"States would be free to ignore and divide communities of color... so long as a state could conjure up a purportedly nonracial excuse for its actions."

Milligan and Stone warned that "a ruling that forces state and local governments to disregard race in map-drawing would have devastating effects on electoral representation."

In 2017, the Supreme Court ruled 5-3 that maps drawn by North Carolina Republicans in 2011 misused racial data and amounted to unconstitutional racial gerrymanders in two congressional districts. Just two years later, however, right-wing justices condoned partisan gerrymandering, contending that the practice is beyond the high court's purview.

Given that Black voters overwhelmingly support Democratic candidates, it can be difficult to disentangle racial gerrymandering from partisan gerrymandering, which is why progressives have long argued that the Supreme Court's refusal to outlaw the latter could effectively legalize the former.

That long-standing fear is relevant to the case now before the Supreme Court.

"If the court sides with Alabama," warned Milligan and Stone, "states would be free to ignore and divide communities of color and could even eliminate many existing minority opportunity districts so long as a state could conjure up a purportedly nonracial excuse for its actions."

"If this happens," they added, "political opportunities for people of color will disappear."

While the VRA has facilitated the participation of voters and elected officials of color nationwide, Chief Justice John Roberts' court has spent the past decade gutting the landmark civil rights law, beginning with anti-discrimination protections in 2013.

During Tuesday's hearing, liberal Justice Elena Kagan summarized the high court's recent assaults on the VRA. If the court's right-wing majority uses the Alabama case as an occasion to dismantle Section 2 provisions against the dilution of minority voters' electoral power, she asked, "what's left" of the law?

"We need representatives who are sensitive to the needs of Black communities, who can have a positive material impact by gaining equal investment, equal funding, and equal resources for Black communities in Alabama and those most adjacent to them," Milligan said last week in a statement.

"We're concerned that without protections from Section 2 of the Voting Rights Act," he added, "redistricting will be weaponized to strip Black communities of fair representation, and thus deny them equal access to resources and an equal voice in government."

"Will we continue to slide toward autocracy or forge a truly multiracial democracy?"

Since Trump's loss in the 2020 presidential contest, GOP-controlled states have intensified their efforts to enact voter suppression laws and redraw congressional and state legislative maps in ways that disenfranchise Democratic-leaning communities of color and give Republicans outsized representation, which could help them cement minority rule for at least a decade.

Lindsay Langholz, director of policy and program at the American Constitution Society, said last week that "due in part to this court's open hostility to voting rights, we find ourselves in the midst of democracy's moment of truth."

"Will we continue to slide toward autocracy or forge a truly multiracial democracy?" she asked. "The decision in Merrill v. Milligan will help determine that future, with the potential to either foster or frustrate meaningful political representation for communities of color in this country."

Merrill v. Milligan is not the only case concerning the future of U.S. democracy that the high court has agreed to hear this term.

Also on the docket is Moore v. Harper, which threatens to give state legislatures—many of them highly unrepresentative due to rampant gerrymandering—virtually unchecked power to oversee and potentially skew federal elections.

"If both these cases go badly, it's not that America will stop having elections," Vox legal reporter Ian Millhiser wrote last week. "But the power to decide how elections are conducted—which ballots are counted, where district lines are drawn, and potentially even who is certified as the winner of an election—could rest with increasingly partisan officials, including the justices themselves."

That the nation's chief judicial body has agreed to hear such appeals at all, said Thedford, "is further proof that it has been hijacked by out-of-control political appointees with an undemocratic agenda."

"If Congress fails to stop them," he added, "they will continue to erode our democracy and our fundamental freedoms until we no longer recognize the country we live in."

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