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Alabama redistricting battle poised to gut Voting Rights Act for good

The Supreme Court begins its new term examining the role of race in redistricting. 

WASHINGTON (CN) — With Americans refocusing on elections ahead of November, the Supreme Court is set to cast its ballot on a redistricting fight out of Alabama, deciding how much power Black voters get to elect their representatives of choice. 

On Tuesday the justices will hear arguments in Merrill v. Milligan, the nation's latest undertaking in the struggle to preserve free and fair elections. The case asks if it is discriminatory when forming congressional districts to consider race as a means of giving minority voters equal opportunity. 

“The state is asking the court to eliminate all consideration from the racial redistricting process, essentially, to make it entirely race-neutral,” said Jonathan Diaz, senior legal counsel at the Campaign Legal Center. “If the court adopts the state's position, it would really severely curtail Section 2's ability to ensure that minority voters can elect representatives of their choice.”

Following the 2020 census, Alabama’s legislature proposed a new congressional map. The redesigned map cleaved the Black Belt — a region of Alabama named for its fertile black soil and home to a majority of residents who are descendants of enslaved individuals — into four districts, splitting the county and city of Montgomery into two districts. This region holds significance in the fight against discrimination and is home to historical events such as the Montgomery bus boycott and Bloody Sunday. By dividing up this region, Black Alabamians would represent the majority in only one district despite making up 27% of Alabama’s voting-age population. 

Three groups, including the Alabama State Conference of the NAACP and the American Civil Liberties Union, filed lawsuits attempting to block the use of the new map. The suits said the new map violated the Equal Protection Clause and Section 2 of the Voting Rights Act. The suits alleged that Black voters in the southern half of Alabama had unequal access to the political process. 

A three-judge panel ruled that the 2021 map violated the Voting Rights Act and ordered legislators to include an additional Black majority district. Alabama brought an emergency appeal in January, asking the Supreme Court to block the map redraw. The justices ultimately split 5-4 in favor of Alabama, putting the lower court ruling on hold and allowing the diluted map to take effect. The justices also agreed to add the case to their docket later in the year. 

On Tuesday, the justices will hear arguments on whether Alabama’s 2021 redistricting map violated Section 2 of the Voting Rights Act. 

Congress deemed the Voting Rights Act a necessity after nearly a century of voter suppression against Black Americans, despite the ratification of the 15th Amendment. Enacted in 1965, the Voting Rights Act sought to end the denial of the right to vote based on race. Section 2 targeted voting practices that denied U.S. citizens the right to vote based on race, including the dilution of votes by the way electoral maps are drawn.

In 1986, the Supreme Court created a multipart test to satisfy Section 2’s requirements on illegal vote dilution occurred in Thornburg v. Gingles. The two main steps to this test are demonstrating that racially polarized voting has denied minority voters an equal opportunity to elect their preferred candidate and that the political process is therefore not “equally open” to minority voters. The district court used this framework to conclude that Alabama’s 2021 map likely violated Section 2. 

Alabama claims that districts are equally open when they are drawn neutrally, and just because a majority-minority district can be drawn doesn’t mean it must be. The state challenges the preconditions set out by the court’s precedent in Gingles and claims its 2021 map does not violate the Voting Rights Act. 

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“The preconditions announced by this Court in Gingles serve a gatekeeping function in redistricting challenges,” Alabama Solicitor General Edmund G. LaCour Jr. wrote in the state’s brief. “Gingles requires plaintiffs to satisfy its three preconditions before a redistricting plan can trigger §2 scrutiny. But the preconditions are no substitute for the ultimate ‘totality of circumstances’ analysis required to determine whether districts are ‘equally open.’” 

If race continues to be an essential consideration in the Gingles test, the state claims, then the test itself becomes useless. 

“Race cannot predominate from step one in the Gingles analysis, or else Gingles is a useless tool for determining whether race conscious remedies are appropriate in the first place,” LaCour Jr. wrote. 

Alabama’s argument centers on the thinking that the 2021 map is “race-neutral.” The state claims that the voting rights groups challenging its map, and the district court that concluded it diluted Black votes, start from the presumption that a second majority-Black district is necessary. According to Alabama, Section 2 does not require it to draw majority-minority districts. 

“Plaintiffs’ race-infused approach to §2 is fundamentally flawed because it is circular,” LaCour Jr. wrote. “From the start, Plaintiffs (and the district court) assumed the answer to the ultimate question — namely, that a second majority-black district needed to be drawn. But §2 operates as a prohibition against redistricting plans that discriminate ‘on account of race,’ not as an affirmative obligation for race-based redistricting to maximize or make proportional the number of majority-minority districts. It does not require a State to draw a majority-minority district any time such a district could be drawn — something that both §2’s text and this Court’s precedents expressly disclaim.” 

Advocates challenging Alabama’s map claim the state is asking the court to overturn precedent and completely upend the Voting Rights Act in order to prove its case. 

“Lacking any basis to challenge the court’s factual findings or legal conclusions under existing law, Defendants seek to rewrite the statute and overturn decades of settled precedent,” Deuel Ross, an attorney for the advocates with the NAACP Legal Defense & Education Fund, wrote in their brief.

Alabama’s request to rewrite Gingles asks the justices to disregard stare decisis — something the high court is already under intense scrutiny for doing. Advocates say not only would the court be disregarding its own precedent, but it would be disregarding Congress’ actions as well. 

“Defendants’ invitation to rewrite the Gingles framework contravenes the ‘enhanced’ stare decisis applied in statutory cases,” Ross wrote. “Since Gingles, Congress has twice amended the VRA without altering the standard. Because Congress ‘spurned multiple opportunities to reverse’ a statutory decision, this Court demands a ‘super-special justification’ to change course. Defendants cannot clear that high hurdle.” 

The case comes almost a decade after the court’s landmark ruling in Shelby County v. Holder, which threw out Section 4 of the Voting Rights Act. Advocates worry this case could be the final nail in the coffin for the Voting Right Act. 

“Post-Shelby County, Section 2 is the Nation’s best hope for fostering equal political opportunity,” election law experts wrote in an amicus brief before the court. 

Experts say this case asks the justices to break the promise made in Shelby County to protect Section 2. 

“If Alabama is successful in this case, minority litigants will have no meaningful opportunity to challenge demonstrably discriminatory practices that abridge their right to vote or dilute the power of their votes,” WilmerHale attorney Debo Adegbile wrote in the experts' brief. “Gutting Section 2 would frustrate Congress’s clearly stated purpose for enacting the Voting Rights Act in 1965 and reauthorizing it in 1970, 1975, 1982, 1992, and 2006.” 

The American Bar Association warned the justices that adopting Alabama’s approach would lead to a dismantling of majority-minority districts across the country. 

“Section 2 is a key means of ensuring that all Americans have an equal opportunity to exercise the fundamental right to vote,” Reginald Turner, an attorney at the American Bar Association, wrote in the group’s amicus brief. “Adopting Alabama’s proposed framework in this case would threaten to eviscerate § 2 and thereby undermine equality in voting nationwide. That result would do lasting harm to minority voting rights, democracy, and the rule of law.” 

Marking the start of its new term, the court will return from summer recess on Oct. 3. For the first time in over two years, the public will be invited back into the courtroom to hear oral arguments. The court will also continue providing live audio of arguments on its website. 

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