Advocates fear Supreme Court’s Alabama moves could weaken minority protections in VRA

The Supreme Court’s ruling this week to allow Alabama to move forward with redistricting maps that underrepresent Black voters is worrying advocates who say it may be a preview of the conservative majority’s threat to protections against racial gerrymandering and other discriminatory elections practices. 

The 5-4 decision on Monday allowed Alabama to keep its controversial new maps in place for the upcoming midterm elections, overturning a ruling from a three-judge panel, which included two Trump-appointed judges, that found the maps violate the Voting Rights Act’s (VRA) prohibition of practices that disadvantage minority voters.

While the short-term implications of the ruling have sparked outrage from Democrats and civil rights activists, some are concerned that the real damage to the VRA could come when the case comes back before the court next term, raising the possibility that conservatives on the bench want to gut what remains of the landmark 1965 civil rights law.

“The idea that the court would block it and deprive them of representation for at least one election cycle is itself disturbing,” said Michael Li, senior counsel with the Brennan Center for Justice at the New York University School of Law, which works on voting rights issues. 

“But then there’s a question of the merits, and I think the ominous sign of what might be a Supreme Court prepared to carve back further on protections for communities of color and redistricting and really rewrite 40 years of law about how the Voting Rights Act is used in the context of redistricting,” Li told The Hill.

The Supreme Court’s ruling temporarily stayed the lower court’s order requiring Alabama officials to redraw district maps before the upcoming primary election cycle for the 2022 midterms. The ruling did not decide the merits of the legal challenge, and the majority did not explain its reasoning.

But Justice Brett Kavanaugh published a concurring opinion explaining that he voted to keep the disputed maps in place because forcing the state to draw new districts close to an election would invite chaos.

“When an election is close at hand, the rules of the road must be clear and settled. Late judicial tinkering with election laws can lead to disruption and to unanticipated and unfair consequences for candidates, political parties, and voters, among others,” Kavanaugh wrote. “It is one thing for a State on its own to toy with its election laws close to a State’s elections. But it is quite another thing for a federal court to swoop in and re-do a State’s election laws in the period close to an election.”

The justices will hear arguments in the case sometime in their next term starting in the fall and will probably rule on it by July 2023.

If the conservative majority winds up further gutting the VRA and other elections laws, it would make it much easier for state legislatures to further dilute minority voters’ representation.

Conservative justices have been chipping away at voting rights laws in recent years, delivering a major blow to the VRA in 2013 by ruling that a key provision was unconstitutional. Section 5 required some states with a history of discrimination to submit election procedure changes for approval by the federal government. 

Joaquin Gonzalez, an attorney with the Texas Civil Rights Project, said that the 2013 case, called Shelby County v. Holder, removed the burden on states with a history of racial voter discrimination and shifted it to those fighting for civil rights — and since then, the court has been making it harder for challenges against discriminatory election laws.

One of those burdens is a legal concept that has been embraced by the conservative majority called the Purcell principle, which holds, as Kavanaugh articulated in his opinion this week, that the presumption is against plaintiffs in challenges to voting laws when there is an election approaching.

“So you have to wait until the map is passed, and then bring these cases that have all these factors and are expensive to litigate,” said Gonzalez. “And now, you not only have to wait until the maps are passed, and the burden’s on the plaintiff, but you can’t even litigate the case until after one election cycle has gone by. So just even just the preliminary threshold of getting into court keeps getting harder and harder.”

At the heart of the Alabama case is the concept of voter dilution. Though 27 percent of the state population is African American, Black voters can elect the candidate of their choice in just one of seven districts — or 14 percent of the state’s seats.

Advocates say — and the district court panel agreed — that there are enough Black voters in Alabama to justify two such districts. 

Alabama’s Black Belt, which runs across the southern part of the state, was named for its rich, black soil that made it a prime region for growing cotton. That feature also made it a hub for plantations, leaving an 18-county region full of descendants of slaves.

“You actually can draw like a compact district in the southern part of Alabama that is the second Black majority district,” Li said. “They share history, from slavery to segregation and oppression to today.”

Rep. Terri Sewell, the state’s only Black and Democratic lawmaker, represents a district that covers only the western half of the Black Belt.

But Alabama has argued new maps could run afoul of redistricting criteria that prize racial neutrality — an argument that, if backed by the court, could undermine the VRA, which seeks to strike a delicate balance in considering race when drawing legislative districts.

Michael Klarman, a law professor at Harvard University, said that if the Supreme Court allows Alabama to implement its new maps on a permanent basis, it will have ripple effects for other states where Republican legislatures are trying to dilute minority voting power.

“If the Supreme Court says you don’t have to draw any [more] districts, as long as what you’re doing is paying no attention to race, that will have an enormous effect,” Klarman said.

Li said the Alabama argument “subordinates federal law to state rules” but agreement from the court would buoy states interested in passing laws requiring certain voting requirements to be “race blind.”

“It gives states an easy ability to neuter the VRA entirely if they wanted to just by adopting rules that make it impossible to draw minority districts,” he said.

One state that will likely see implications from how the court decides the Alabama dispute is Texas, which is gaining two more congressional seats thanks to a population boom over the past decade reported in the 2020 census.

But despite people of color accounting for more than 95 percent of the state’s new residents, both of the new congressional seats will represent districts that are majority white. And Texas’s new statehouse district maps actually reduce the number of jurisdictions where the Latino population is in the majority.

Texas’s maps are also facing court challenges, and Gonzalez says that how the Supreme Court rules in the Alabama case could affect those lawsuits and add to the various hurdles that plaintiffs are already facing.

“I think that was what was concerning about the Supreme Court opinion, because all of these areas, basically each step of the way along those areas, there’s a lot that isn’t 100% settled in the case law and basically, they always say it’s not cut and dry, you have to like look at the individual circumstances,” he said. “So I think at each of those points, a conservative court could basically raise the bar for what plaintiffs have to prove.”

The Alabama case could also be a factor in Georgia, where litigants have challenged the state’s maps and likewise pushed for a second legislative district. A similar case could also be made in Louisiana, where the state is weighing another map with one minority district, a slim, crescent moon-shaped one that includes Baton Rouge before dipping south and boomeranging over to capture New Orleans.

Klarman said that he believes the high court’s conservative majority could eliminate any requirement for Republican-led states to even create minority districts when crafting maps, allowing them to forge ahead with partisan gerrymandering unless maps are drawn with the explicit intent to disenfranchise minority voters.

“There are probably six votes to say Alabama doesn’t have to draw a second majority Black voting district,” Klarman said. “There might even be six votes to say Alabama doesn’t have to draw one majority Black voting district as long as Alabama isn’t deliberately on a mission to undermine Black voting power. 

“As long as you could show that undermining black voting power is just an incidental effect of your goal to undermine Democratic voting power, then I’m not sure why Alabama couldn’t just draw seven majority white districts,” he added.