By Ariane de Vogue, CNN Supreme Court Reporter
Supreme Court justices wrestled with a key provision of the Voting Rights Act for almost two hours on Tuesday in a case that could make it more difficult for minority voters to challenge alleged gerrymandering and continue the deconstruction of the historic law.
Section 2 of the Voting Rights Act bars voting rules that result in a denial or abridgment of the right to vote on account of racial discrimination. The case marks one of the most important disputes the court will hear this term as the justices — including Ketanji Brown Jackson, the court’s first Black female justice — consider several cases with implications concerning race.
On Tuesday, several conservatives repeatedly questioned the existing framework to evaluate claims of vote dilution in map drawing, while the liberals on the bench expressed support for a lower court opinion that invalidated Alabama’s congressional map, stressing the fact that the state, with a 27% population of Black voters only had one majority Black district.
A federal court had ordered another majority Black district to be drawn, a ruling Alabama appealed to the Supreme Court.
Supporters of voting rights are on edge, cognizant of the fact that in 2013 Chief Justice John Roberts wrote an opinion that effectively invalidated a separate section of the law that required states that had a history of discrimination to obtain federal approval before changing election laws. In the years since, challengers have more heavily relied upon Section 2 of the law, which may now also be in jeopardy.
They say that Section 2 has been instrumental in paving the way for minority voters to more fully participate in the political process and that it represents a safeguard against maps that appear to be neutral but actually entrench racial polarization.
In court on Tuesday, justices on both sides of the ideological spectrum rejected Alabama’s more sweeping claim that the only way to prove a violation of the law is to show that Alabama intended to discriminate when drawing the maps.
That is a much higher bar than whether the maps actually resulted in discrimination.
Justice Samuel Alito referred to the state’s broad argument as “far reaching.” But Alito, along with Roberts and Justices Clarence Thomas and Amy Coney Barrett at times seemed sympathetic to secondary arguments that race cannot be considered too early in the map drawing process — a sentiment that would likely allow Alabama to prevail and tinker with court precedent. Justice Brett Kavanaugh was harder to read, and Justice Neil Gorsuch remained silent through out arguments.
The liberals on the bench strongly supported a lower court opinion that invalidated Alabama’s maps and said court precedent should not be changed.
“This is one of the great achievements of American democracy,” Justice Elena Kagan said of the Voting Rights Act, adding that in recent years the law has “not fared well” at the Supreme Court.
Of the lower court opinion Kagan said, “It’s kind of a slam dunk.”
And she said that if Alabama were to prevail, it would “cut back substantially on our 40 years of precedent.”
“So what’s left?” Kagan asked.
Jackson was a vocal participant, jumping in on several occasions expressing strong support for the existing framework and rejecting the state’s argument that it could not take race into consideration when starting the process to draw lines for fear of violating the Equal Protection Clause of the Constitution.
Jackson pointed to what she called the “historical record” to argue that the founders had recognized “unequal treatment” and said that the mere consideration of race does not on its own create an equal protection problem under the Constitution.
“I don’t think we can assume that just because race is taken into account, that that necessarily creates and equal protection problem,” Jackson said, and then walked the lawyer through a long colloquy about the founding era, the Civil Rights Act of 1866 and the 14th Amendment.
Justice Sonia Sotomayor noted the state’s history of discrimination and said that the black community — through the decades — has been divided among several districts when other so called “communities of interest” had not.
How the case got to SCOTUS
Voters and voting rights group challenged the maps in court and won when a panel of judges — including two Trump nominees — held that the current map likely violates Section 2 because Black voters have “less opportunity than other Alabamians to elect candidates of their choice to Congress.”
The court ordered a new map to be drawn with an additional majority Black district, which would have likely led to Democrats gaining another seat in the US House in the fall.
In an ominous sign for supporters of voting rights, however, a 5-4 Supreme Court majority blocked that decision, allowing the current map to remain on the books, before agreeing to hear the case this term.
Now supporters of voting rights are fearful that the justices are poised to make it much more difficult for plaintiffs to challenge maps under Section 2.
“Section 2 remains an irreplaceable tool for ensuring that mapmakers’ discretionary choices do not shut minority voters out of a seat at the table,” David A. O’Neil, a lawyer representing the Brennan Center for Justice, wrote in court briefs in support of the challengers.
“Section 2 surgically targets a set of carefully defined circumstances in which mapmakers, as in Alabama, ignored clear and reasonable alternatives that give minority voters the ability to engage in the pull, haul and trade at the heart of the democratic process and instead, design racially polarized districts where minority voters are submerged and effectively shut out of the democratic process,” O’Neil said.
As a part of their analysis, the justices reviewed a 1986 case, Thornburg v. Gingles, that established standards for assessing whether a map violates Section 2. The first step is to show that a minority group is sufficiently large and geographically compact to constitute a majority in a district that is reasonably configured. Once that threshold is considered, the court moves on to consider other elements. The final step, once preconditions are met, is for the court to look at the “totality of circumstances” to determine whether members of a racial group have less opportunity than other members of the electorate.
Edmund LaCour Jr., Alabama’s solicitor general, told the court in briefs that for “decades” the state has only had one majority Black district, and that in 2021, when the state enacted new maps, it “largely followed existing district lines” making “race-neutral adjustments for small shifts in population over the last decade.”
But LaCour said the plan was deemed unlawful because the federal court interpreted Section 2 to require the state to “trade its neutrally drawn districts” in order to draw a second majority Black district.
Such a requirement, LaCour argued, puts the state at “loggerheads” with the equal protection clause of the Constitution because the state would have to “prioritize race always in redistricting.” For the challengers to succeed in adding another district, he said, the state would have to “intentionally sort Alabamians by skin color.”
The Voting Rights Act, LaCour said, “does not require States to create majority-minority districts wherever possible” because “compelling States to maximize the voting power of one racial group over others obviously raises serious constitutional concerns.”
He said that in order to establish irregularities, a plaintiff should be required to prove a challenged practice can be explained only by racial discrimination.
Challengers to the current map — including registered voters and the NAACP — urged the Supreme Court to uphold the lower court opinion and say that the “mere consideration of race” to remedy a Section 2 violation does not inevitably lead to equal protection concerns under the Constitution.
They asked the justices to reject Alabama’s attempt to have the court rewrite Section 2 by placing the burden on the plaintiffs to prove that a challenged plan can be explained “only by racial discrimination.”
“As uncomfortable as the political reality in Alabama might be — and as strong the temptation to shut our eyes to the tenacity of racial discrimination in voting — the courts must not blink,” attorney Abha Khanna argued in court papers representing Black voters.
Khanna said that plans drawn up by experts for her side show that a second district could be drawn up that complies with traditional redistricting principles that take into consideration compactness, population equality, contiguity, and respect for communities of interest where race was not the predominant factor.
“Black residents in Mobile, Montgomery and the greater Black Belt share deep historical, cultural and political connections,” Khanna wrote. “They could easily elect their preferred candidates in a compact congressional district drawn consistent with traditional redistricting criteria,” Khanna said.
Instead, she wrote, the state plan “divides the Black voters within this well-established community of interest across several districts, and as a result, Black Alabamians have no chance to elect their preferred candidates outside of” the one Black majority district.
“Adopting a purportedly ‘race-neutral’ redistricting baseline would serve only to submerge long-oppressed minority groups into districts where they are consistently outvoted by the very majorities that have discriminated against them for centuries,” Khanna said.
All Section 2 requires, she said, is that districts be drawn that “give compact, politically cohesive minority groups a reasonable opportunity to elect their preferred representatives.
The challengers are supported by the Biden administration, which noted in briefs that the current framework governing Section 2 vote dilutions has stood for more than 35 years.
“Decades of experience have shown that Section 2, as implemented by the Gingles framework, works as Congress designed by screening out meritless claims and providing relief only for the ‘special wrong’ that occurs when a districting plan combines with racially polarized bloc voting to deny a cohesive minority group an otherwise available opportunity to elect its candidates of choice,” Solicitor General Elizabeth Prelogar argued.
Roberts had voted with the minority to keep the lower court ruling in place while the appeals process plays out. But, critically, he made clear that while the lower court had, he believed, properly followed the Gingles framework, that framework might need revisiting.
This story has been updated with additional details.
™ & © 2022 Cable News Network, Inc., a Warner Bros. Discovery Company. All rights reserved.