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The Supreme Court of the United States is seen from across the Capitol Complex on Saturday, March 6, 2021 in Washington, D.C. (Photo: Kent Nishimura/Los Angeles Times via Getty Images)

The Supreme Court Hearing Alabama Voting Rights Case Signals Danger

A redistricting case could make it harder for communities of color to use the Voting Rights Act to ensure fair representation.

Michael Li

 by Brennan Center for Justice

The Supreme Court's decision to hear a redis­trict­ing case from Alabama next term puts the Voting Rights Act once again in the sights of an increas­ingly conser­vat­ive high court—this time with the poten­tial for a whole­sale roll­back of long-estab­lished protec­tions for communit­ies of color in redis­trict­ing.

Having rolled back the Voting Rights Act's protec­tions in ways big and small over the last decade, the Supreme Court could be prepared to do yet more damage at just the point that a new multiracial Amer­ica is emer­ging.

The case centers on whether Alabama has an oblig­a­tion under Section 2 of the Voting Rights Act to create a second district where Black voters have a reas­on­able oppor­tun­ity to elect community-preferred candid­ates. Black Alabami­ans are currently 27 percent of the state's popu­la­tion, but under the map passed by the Repub­lican controlled Alabama legis­lature, have the abil­ity to success­fully elect candid­ates in only one of the state's seven congres­sional districts.

This anom­al­ous result is the product of a care­fully construc­ted two-step maneuver. First, lawmakers packed a large portion of Black Alabami­ans into the sprawl­ing, heav­ily Black 7th Congres­sional District, which joins much of the state's historic Black Belt with parts of both Birm­ing­ham and Mont­gomery. For the rest of the state, map draw­ers then surgic­ally divided Black voters among the remain­ing six white-major­ity districts. The outcome is a map where the 7th District is more than 56 percent Black, but where no other district is more than 30 percent Black, well below the level needed for Black Alabami­ans to sway elec­tions given the high levels of racially polar­ized voting in the state.

map Source: Declaration of Moon Duchin filed by plaintiffs in Milligan v. Merrill.

Black voters and organ­iz­a­tions chal­lenged the map in federal court, arguing that it would be easy to undo the pack­ing and crack­ing of Black voters to create two reas­on­ably compact Black major­ity districts that place most of the rural Black Belt in two congres­sional districts rather than four as under the map passed by the legis­lature.

map Source: Declaration of Moon Duchin filed by plaintiffs in Milligan v. Merrill.

A three-judge panel, includ­ing two judges appoin­ted by Pres­id­ent Trump, unan­im­ously agreed in a 225-page opin­ion, find­ing that racially polar­ized voting meant that Black communit­ies' candid­ates rarely won elec­tion other than in districts created because of the VRA. The court also found that Black voters still faced signi­fic­ant discrim­in­a­tion in Alabama polit­ical life, includ­ing the use of racial­ized appeals in voting. The court gave Alabama two weeks to redraw the map to create a second Black congres­sional district.

Under long­stand­ing preced­ent, the Alabama case is about as straight­for­ward as they come. To remedy the effects of racial discrim­in­a­tion, prin­ciples first laid out by the Supreme Court in 1986 in Thorn­burg v. Gingles require a state to create a district that gives minor­ity voters a chance to elect a candid­ate if a minor­ity community can show that it is "suffi­ciently large and geograph­ic­ally compact" to be a major­ity in "some reas­on­ably configured district" and other strict condi­tions are met. Some aware­ness and consid­er­a­tion of race is, by neces­sity, part of this analysis. Subsequent Supreme Court cases provide that race cannot "predom­in­ate" in the draw­ing of districts (for example, join­ing together far-flung minor­ity communit­ies that have little in common beyond race), but courts have never said that any consid­er­a­tion of race was uncon­sti­tu­tional.

In appeal­ing, Alabama has asked the Supreme Court to undo four decades of preced­ent to impose a rule that no liab­il­ity under the Voting Rights Act will exist unless it is possible to create a minor­ity district while at the same time comply­ing with all of state's "race-neut­ral criteria" in their entirety. Accord­ing to Alabama, allow­ing a map to devi­ate from a state's "race neut­ral criteria" in order to create a minor­ity district would mean that a district uncon­sti­tu­tion­ally prior­it­izes race.

At a minimum, the Supreme Court's decision to hear the case means that the map struck down by the lower court will remain in place for the 2022 midterm elec­tions. But taking the case also omin­ously signals a will­ing­ness from the justices to recon­sider the ques­tion of whether race can be considered at all in comply­ing with the Voting Rights Act—or whether, in the words of one of plaintiffs, litig­ants must ignore race and "blindly stumble around [a] map, hoping they might just happen to run into a new major­ity-Black district."

A win for Alabama would cripple the abil­ity of communit­ies of color to win relief under the Voting Rights Act. States' exist­ing "race neut­ral" rules would trump all else and could never be viol­ated when comply­ing with the law. Incum­bency protec­tion, preserving polit­ical bound­ar­ies set in stone a century or more ago, strict rules on compact­ness—all would take prior­ity over minor­ity repres­ent­a­tion. Worse, states could adopt any number of facially neut­ral redis­trict­ing rules engin­eered in real­ity to make it all but impossible to draw minor­ity districts. It, in short, would be the end of the VRA as we know it, effect­ively subor­din­at­ing federal law to state law.

Having rolled back the Voting Rights Act's protec­tions in ways big and small over the last decade, the Supreme Court could be prepared to do yet more damage at just the point that a new multiracial Amer­ica is emer­ging.

© 2021 Brennan Center for Justice

Michael Li

Michael Li serves as counsel for the Brennan Center’s Democracy Program, where his work focuses on redistricting, voting rights, and elections.

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