The Supreme Court Is On The Verge Of Killing The Voting Rights Act
The beginning of the end for the Voting Rights Act started more than 30 years ago. On Oct. 4, the end of the end is likely to begin. This term, the Supreme Cour…
By Amelia Thomson-DeVeaux
OCT. 3, 2022, AT 6:00 AM
SAMUEL CORUM / GETTY IMAGES
The beginning of the end for the Voting Rights Act started more than 30 years ago. On Oct. 4, the end of the end is likely to begin.
This term, the Supreme Court is hearing a case about whether Alabama’s newly drawn congressional maps violate Section 2 of the Voting Rights Act of 1965, which prohibits voting practices or procedures that discriminate on the basis of race. In a seven-district state, the new maps included only one majority-Black district even though the state has a population that is more than one-quarter Black. The groups challenging the maps say that because it would be relatively easy to draw a map with two majority-Black districts, the state is legally obligated to do so. But Alabama Republicans countered by arguing they don’t have a requirement to use the plaintiffs’ maps, because creating a second majority-Black district would violate other race-neutral criteria used in redistricting.
The justices’ ruling could have implications that go far beyond Alabama, potentially neutering what remains of the Voting Rights Act — a seminal piece of legislation that is ostensibly permanent yet constantly imperiled.
The current Supreme Court justices, under Chief Justice John Roberts, might strike the final blow against the Voting Rights Act, whether it’s in this case or a future one. But they didn’t strike the first blow. According to a FiveThirtyEight analysis of Supreme Court cases involving the Voting Rights Act, most of the first 20 years of decisions interpreting the law went in a liberal direction.1 That changed in the late 1980s, when more right-leaning justices joined the bench and, not coincidentally, more and more of decisions overall started to go in a conservative direction. Of the seven Voting Rights Act cases that the court has heard in the Roberts era, only one had a liberal outcome. “Starting in the 1990s as the court’s composition changed, the court has been cutting back or refusing to expand Section 2 in virtually every case it’s had,” said Richard H. Pildes, a constitutional law professor at New York University.
Now, the Roberts court could be poised to continue that trajectory by fundamentally altering the way that Section 2 operates. Up until now, the court has taken the perspective that, in order to comply with the act, states are in some situations required to take race into consideration as the primary factor in the redistricting process. Alabama Republicans are now arguing that it’s discriminatory to prioritize race over other traditional redistricting techniques, such as having compact districts, contiguous boundaries or avoiding crossing county or town boundaries. Several experts, including Pildes, told FiveThirtyEight that a ruling that sides with Alabama would be a radical departure from previous interpretations of the law and would likely free states to draw congressional or state legislative maps where minority voters have less political power relative to their numbers.
In that sense, the outcome of this case could be very similar to a 2013 ruling in which the Roberts court gutted another section of the Voting Rights Act, freeing a group of states with histories of discrimination against minority voters to change their election laws without federal approval. In the years afterward, those states shuttered thousands of polling places, intensified their voter purges and changed voting laws in other ways that disproportionately affect minority voters.
When it was passed in 1965, two crucial sections of the Voting Rights Act — Section 2 and Section 5 — tackled the problem of race-based voter suppression. Section 5 was proactive, trying to stop discrimination before it occurred by requiring states with a history of discrimination to run any changes to their election laws by the federal government in a process that was known as “preclearance.”
Section 2, on the other hand, was designed to handle discrimination after it happened. It works as an enforcement mechanism for the Fifteenth Amendment, which says that the right to vote can’t be denied or limited on the basis of race. Effectively, it gave minority voters another avenue to bring voter-suppression claims to the courts. Crucially, that applies to the redistricting process since it forbade states from drawing district lines in a way that diluted racial minorities’ votes. According to Jesse Rhodes, a political science professor at the University of Massachusetts, Amherst who has written on the history of the Voting Rights Act, the law was designed to provide “an equal opportunity for [minority voters] to elect candidates that represent them and wield power in proportion to their numbers.”
Over the past few decades, Section 2 has primarily been used as a weapon against a practice known as racial gerrymandering — where lawmakers spread minority voters across state and federal legislative districts, or pack them into districts, in a way that made it impossible for those groups to elect the candidates of their choice. (We previously reported on how Section 2 reshaped North Carolina as part of “The Gerrymandering Project.”) In many ways, the case in Alabama is a textbook example, according to Franita Tolson, an election law professor at the University of Southern California. “A decade ago, we would have said that this is a clear Section 2 violation,” Tolson said. “African Americans didn’t get the number of seats they were entitled to. Very straightforward.” The panel of lower court judges who heard the case earlier this year — which included two Trump appointees — agreed.
But several experts, including Tolson, told me that they don’t expect the Supreme Court’s conservative supermajority to take this tack. That’s because the court has grown increasingly hostile to the Voting Rights Act over the past few decades. The timing is not a coincidence. Roberts, who has been chief justice since 2005, has been critical of the law — and Section 2 — since he was a young government lawyer in the 1980s.
But it goes beyond Roberts. In February, five of the conservatives voted to restore Alabama’s congressional map — the one with only one majority-Black district — for the 2022 election after the map had been overturned by the lower-court panel. Roberts dissented, saying that the lower-court judges had applied the law correctly. But he added that the Supreme Court’s previous cases “have engendered considerable disagreement and uncertainty regarding the nature and contours of a vote dilution claim,” suggesting that he may be open to rethinking the scope of Section 2.
Since Roberts was sworn in, the Supreme Court has ruled on seven cases involving the Voting Rights Act, according to our analysis of data from the Supreme Court Database. In five of those cases, the ruling went in a conservative direction. One of the other cases was a complex opinion where the median justice, Anthony Kennedy, joined the court’s liberals to overturn one congressional district in Texas, saying that it had unconstitutionally diluted Latinos’ votes. In the other “liberal” outcome, the court ruled in a 2008 case involving a Texas utility district that Section 5 of the Voting Rights Act wasn’t unconstitutional. Five years later, it eviscerated the preclearance requirement in another case, Shelby County v. Holder. That 2013 ruling didn’t invalidate Section 5 altogether, but it did reject the formula that Congress used to determine which jurisdictions were subject to preclearance, saying that it relied on outdated data.
A ruling in favor of Alabama in this case would have a different — but still significant — impact. In the short-term, it would mean that there are fewer majority Black districts in Alabama and Louisiana, where a similar court case is unfolding. The justices could go further, too, if they fully side with Alabama’s argument in the case. One analysis found that if other states used the “race-blind” approach that Alabama is advocating for, the total number of majority-minority districts would be substantially lower. The analysis also found that in the South, where this approach would have the biggest impact, a race-blind map would benefit Republicans.2
That isn’t the way the Voting Rights Act has been interpreted up until now. “The court has accepted the principle that if the use of race is necessary to comply with the Voting Rights Act, then it’s constitutional to use race to do so,” Pildes said. But this case could be an opportunity to revisit — and significantly revise — the Voting Rights Act’s requirements. And that could end up reducing minority voters’ electoral power.
CORRECTION (Oct. 3, 9:17 a.m.): An earlier version of this article implied the oral argument for the case about Alabama’s redistricting map will take place on Oct. 3. It is happening on Oct. 4.