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(Bloomberg) -- Once the heart of the Confederacy and the civil rights movement, Alabama is now in the middle of a new racial showdown: a US Supreme Court case that could make it harder for Black candidates to get elected to Congress.Most Read from BloombergCredit Suisse Turmoil Deepens With...
Black Voting Districts Are Vanishing as the Supreme Court Gets Out Its Eraser
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Black Voting Districts Are Vanishing as the Supreme Court Gets Out Its Eraser
Sat, October 1, 2022, 9:00 AM·7 min read
(Bloomberg) -- Once the heart of the Confederacy and the civil rights movement, Alabama is now in the middle of a new racial showdown: a US Supreme Court case that could make it harder for Black candidates to get elected to Congress.
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As they open their new term next week, the justices will consider whether Alabama violated the Voting Rights Act by drawing its congressional map in a way that ensures the state will have just one Black representative for the next decade. The court may have tipped its hand in February when it temporarily blocked a ruling that would have required a second heavily Black district for the Nov. 8 election.
The case gives the court’s conservative majority a chance to transform redistricting rules and sharply curtail what critics call “racial gerrymandering.” At the same time, the clash risks exacerbating a sense among some minorities that their votes count for less than those of White people in a state that has seven congressional districts and is 27% Black.
“We’re asking for a piece of the pie, too,” said Khadidah Stone, a Montgomery resident and one of the voters challenging the GOP-drawn map. “Other communities have their districts. Why can’t we have ours as well? It’s already there. We have 27%. It’s enough for us to have another district.”
The case, which is being argued on Tuesday, is one of two redistricting disputes on the court’s 2022-23 agenda, along with a far-reaching North Carolina fight that will test the power of state courts to invalidate congressional maps as too partisan. They are the court’s first redistricting cases since the 2020 census forced states to redraw their lines -- an often contentious political process that has reduced 22 majority-Black voting districts in the US to as few as nine.
The high court case could have broad ramifications, giving lawmakers far more leeway to draw maps without considering the impact on racial minorities. It's likely to affect pending litigation over congressional maps in Texas, Louisiana and Georgia, as well as similar fights over state and local voting lines.
The Alabama dispute joins an Oct. 31 college affirmative admissions showdown as major race cases in the first term for Justice Ketanji Brown Jackson, the first Black woman to serve on the court.
Alabama’s racial past forms an indelible part of its present. In the capital of Montgomery, the house where Jefferson Davis first lived after being sworn in as president of the Confederacy sits as a tourist site just blocks away from the Rosa Parks Museum, dedicated to the woman who famously refused to surrender her bus seat to a White passenger in 1955.
Forty miles away is the city of Selma, where a 1965 attack on civil rights marchers by state troopers spurred passage of the Voting Rights Act, the landmark law designed to protect minority voters at the polling place.
Alabama might have no majority-Black districts were it not for the Voting Rights Act. A court-ordered map led to Earl Hilliard’s 1992 election in the 7th District as the state’s first Black member of Congress since 1877.
The districts have remained largely the same since then, as has the delegation’s racial breakdown. Democratic Representative Terri Sewell now represents the 7th District, which covers parts of Montgomery and Birmingham, as well as much of the so-called Black Belt, the largely rural area originally named for the color of its fertile soil. The other six representatives are all White Republicans.
Sewell supports a second majority-Black district, even though doing so would probably add White voters to her district, which now has a 55% Black voting-age population.
“I’m the lone vote on a lot of really important bills that have to do with civil rights, that have to do with funding for underrepresented communities and communities of color,” Sewell said in an interview. “Having someone at the table who is from those communities, chosen by those communities is important.”
Five of Sewell’s Republican colleagues in the Alabama delegation are urging the court to reject a second majority-Black district, saying the Voting Rights Act doesn’t require proportional representation.
“I don’t feel that most African Americans in Alabama feel disenfranchised,” said Representative Robert Aderholt, whose 4th District cuts across mostly rural areas in northern Alabama and has the fewest Black voters in the state. “I’ve got a very good relationship with the African American community, and they know my door is always open at any time. And quite honestly, I hear a lot of Whites that live in the 7th District feel that Terri Sewell listens to them.”
Although the legal issues focus on race, the partisan impact is inescapable. A second heavily Black district would probably give Alabama a second House Democrat.
The Republican National Committee and National Republican Redistricting Trust are opposing a second majority-Black district in the state, while the National Democratic Redistricting Committee and the Biden administration back an additional district.
A three-judge panel said Alabama was probably violating the Voting Rights Act with a map drawn by the GOP-controlled legislature.
Applying a multifactor test from a 1986 Supreme Court ruling, the panel said that Black voters “have less opportunity than other Alabamians to elect candidates of their choice to Congress.” The panel included two judges appointed by former President Donald Trump.
In his appeal, Alabama Attorney General Steve Marshall said the state based the new map on the previous district lines. Making a far-reaching argument that could strip the Voting Rights Act of much of its force in redistricting, he told the justices the measure can’t constitutionally require “racial preferences” when lawmakers are drawing maps.
“Congress cannot enforce a prohibition on discrimination by mandating discrimination,” he argued in court papers.
Marshall, a Republican who declined to be interviewed in advance of the argument, contends that any effort to draw a second Black district would requiring linking voters in Mobile County, in the southwest corner of the state, with people on the eastern edge of the state, more than 250 miles (402 kilometers) away.
“The notion that somehow being fair requires drawing these bizarre shapes just to hit certain racial targets is what I think the Supreme Court’s going have a hard time with,” said Jason Torchinsky, who filed a brief for the National Republican Redistricting Trust.
But Evan Milligan, another plaintiff in the case, says putting predominantly Black communities in the same district makes sense given their shared history and policy interests. On a drive through the outskirts of his hometown of Montgomery, in a heavily Black neighborhood that lies in Republican Representative Barry Moore’s 2nd District, Milligan pointed out abandoned vehicles and ramshackle “shotgun” houses he said reminded him of rural Alabama.
“I could take you to Hale County, Perry County, Macon County, any of the rural Black Belt communities we would see things that are very similar, and the same in Mobile,” Milligan said. He cited diabetes, maternal mortality and entrepreneurial support as key issues for all those areas.
The challengers say they offered more geographically compact maps than the Republican-drawn lines, including configurations that bring the rest of Montgomery and the Black Belt into majority-Black districts.
The current lines now snake through Montgomery, carving up the majority-Black city so that two-thirds of it is represented by Moore, and split the Black Belt into four districts. The effect is to dilute Black voters’ strength, putting more than necessary to elect Sewell in the 7th District while ensuring Black candidates don’t have a chance in other districts, the challengers say.
Their arguments might have already succeeded were it not for one other piece of Alabama history: a 2013 Supreme Court ruling. Using an Alabama case, the court nullified Voting Rights Act provisions that required states with a deep history of discrimination to get preclearance by either the Justice Department or a federal court before issuing new maps or changing other voting rules.
The latest case is a “direct descendant” of the 2013 ruling, said Janai Nelson, president of the NAACP Legal Defense Fund, which represents Stone and Milligan.
“This is the first election cycle in which we no longer have the protection of preclearance,” Nelson said. “There’s no way that this plan with the disproportionate suppression of black political power that it has would have been able to survive preclearance.”
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.
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 restoreAlabama’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.