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Further erosion of voter protections signaled by Supreme Court

Weary of attacks on Section 2 of the Voting Rights Act, the justices appeared more inclined to rewrite high court precedent. 

WASHINGTON (CN) — A longstanding framework used to determine racial gerrymandering is likely to see changes after the Supreme Court heard arguments Tuesday on Alabama redistricting found to diminish the voting power of Black communities. 

Voting rights advocates say Black voters have diluted authority on Election Day in Alabama because they hold the majority in just 1 out of 7 congressional districts, even while representing 27% of the state's voting-age population.

When lawmakers began redistricting in response to the 2020 census, they decided to split Alabama’s Black Belt — a region named for its fertile black soil and home to a majority of residents who are descendants of enslaved individuals — into four districts. Montgomery — whose history of discrimination paints the pages of history books — was broken into two districts. Three different challenges were brought against the 2021 map. The Alabama State Conference of the NAACP and the American Civil Liberties Union say the maps prevent Black voters from having equal access to the political process, violating the Equal Protection Clause and Section 2 of the Voting Rights Act. 

The case that went before the high court on Tuesday put what is left of the Voting Rights Act on the chopping block, with strong opposition to Alabama's arguments coming from the court's outnumbered liberal wing.

Justice Elena Kagan told Alabama’s solicitor general that the court's precedents do not recognize any of his arguments, something that is not true for the challengers. 

“What strikes me about this case is under our precedents, it’s a slam dunk,” the Obama appointee said. 

Kagan said if the court adopted the state’s arguments, Alabama — and other states — could adopt maps with no districts considered majority-minority, meaning racial minorities are the largest segment of a given population.

Alabama’s solicitor general did not dispute this. “So you think that there are circumstances … in which a population that is 27% of the state’s population could essentially be foreclosed from electing a candidate of their choice anywhere,” Kagan asked. 

Alabama’s claim that the U.S. Constitution requires race neutrality meanwhile drove pushback from the court's newest justice, who noted that the 14th and 15th Amendments are themselves race-conscious. 

“I don’t think we can assume that, just because race is taken into account, that that necessarily creates an equal protection problem," Justice Ketanji Brown Jackson said, "because I understood that we looked at the history and traditions of the Constitution, at what the framers and the founders thought about. … It became clear to me that the framers themselves adopted the equal protection clause, the 14th Amendment, the 15th Amendment, in a race-conscious way."

The Biden appointee was a very active participant during oral arguments, challenging not only arguments from attorneys in the case but her fellow colleagues. 

“In a defining moment in this morning’s lengthy two-hour long argument, Justice Ketanji Brown Jackson made clear the progressive promise of the Constitution’s text and history as she quickly got to the heart of why Alabama’s defense of its racially gerrymandered districts would turn the Constitution and the Voting Rights Act on its head,” David H. Gans, director of the human rights, civil rights, and citizenship program at the Constitutional Accountability Center, said in a phone interview.

Gans noted that the court's conservative supermajority appeared focused Tuesday on a narrower argument that would make it harder for challenges based on racial gerrymandering to be successful. 

“The line of argument that was pushed most strongly by Justice Alito would make it harder to bring a challenge and would further gut the Voting Rights Act, something the Roberts court has been doing almost every case it gets,” Gans said.

Alabama's Republican Legislature is seeking relief in Washington this term after a panel of federal judges found their map in violation of the Voting Rights Act and ordered the creation of an additional Black-majority district. Courtesy of the Supreme Court's notorious shadow docket, the Republicans got their map reinstated pending the forthcoming decision on the merits.

Alabama’s Solicitor General Edmund LaCour Jr. claims the state Legislature created its map in a lawful manner, accounting for changes in population growth. He said Section 2 of the Voting Rights Act requires equal opportunity for all voters; it doesn’t require prioritization of certain groups. Alabama argues that the only way to create a second majority-minority district is to focus on race, which is in itself discriminatory. 

Section 2 — which prohibits voting practices or procedures that discriminate on the basis of race — is seen as the last vestige of the Voting Rights Act after the Supreme Court nixed a preclearance regime in Shelby County v. Holder.

Representing the Alabama voters who challenged the map, Deuel Ross underlined in his argument to the court Tuesday what Alabama’s redistricting efforts mean for Black voters. 

“There is nothing race-neutral about Alabama’s map,” said Ross, senior counsel at NAACP Legal Defense and Educational Fund. “The district court’s unanimous and thorough intensely local analysis did not err in finding that the Black Belt is a historic and extremely poor community of substantial significance. Yet, Alabama’s map cracks that community and allows white block voting to deny Black voters the opportunity to elect representation responsive to their needs.” 

U.S. Solicitor General Elizabeth Prelogar's argument detailed Alabama's history of discrimination and marginalization of Black voters. 

“The history and effects of racial discrimination in the state are severe,” Prelogar told the justices. “Black voters are significantly underrepresented and they’re sufficiently numerous and compact to form a majority in a reasonably configured district, as the district court specifically found.” 

Prelogar said Alabama was asking the court to radically change the law and warned the justices that minority voters would have less power to elect representatives of their choice if they adopted the state’s arguments. 

“Under the state’s approach," she continued, "nothing would stop Alabama and many other states from dismantling their existing majority-minority districts, leaving Black voters and entire swaths of the country with no ability to elect their preferred representatives."

Justice Samuel Alito was the most vocal of the court’s conservatives on Tuesday and appeared inclined to rewrite preconditions that the court created in Thornbury v. Gingles

“Your most basic argument is not at war with Gingles,” the Bush appointee told Alabama’s solicitor general. “You have quarrels with Gingles, but your most basic argument fits right into Gingles.” 

Alito and some of his conservative colleagues focused on the first precondition, which requires a minority group to demonstrate that it is “sufficiently large and geographically compact to constitute a majority in a single-member district." Changing this precondition, as Alito suggested, would make it harder for challengers to prove congressional maps were racially gerrymandered. 

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