The new controversy could lead to a further hollowing out of a separate provision — known as Section 2 and barring practices that racially discriminate — specifically in the context of redistricting maps.
Combined, the court’s actions could mean the reach of the Voting Rights Act is dramatically limited by the 2024 presidential election.
This latest voting rights controversy arises against a broader erosion in America of democratic norms and a polarized electorate. States have increasingly adopted new restrictions for the polls, and federal legislation to safeguard voting rights has stalled in Congress.
The conservatives who control today’s court have consistently enhanced states’ control over election practices, while diminishing opportunities for federal oversight and judicial safeguards. In a case from Arizona last year, the justices narrowed the reach of Section 2 as they upheld policies requiring ballots cast by people at the wrong precinct to be wholly discarded and criminalizing third-party collection of absentee ballots, such as at nursing homes.
The three liberal justices dissented Monday and warned that if the Supreme Court fully accepts Alabama’s legal rationale for opposing a second majority-Black district in the state, it “would rewrite decades of this Court’s precedent” that has given racial minorities an equal opportunity to participate in elections.
Alabama’s population is 27% Black, and the state legislature created a map that would provide Blacks the opportunity to elect their preferred candidate in only one of the state’s seven congressional districts.
The court’s acceptance of the Alabama dispute means the justices will begin the 2022-23 session next October with two racially charged controversies on its agenda. The justices recently announced they would hear lawsuits against race-based affirmative action practices at Harvard and the University of North Carolina.
Today’s Supreme Court majority is plainly exerting its right-wing muscle with three new appointees of former President Donald Trump. In the current 2021-22 session that will run through June, the court already has signaled a willingness to plow through precedent related to abortion rights, gun control and religious liberties. A test of the Clean Air Act will be heard later this month as well.
Voting rights pattern under Roberts
The scope of the historic Voting Rights Act has been a recurring agenda item for the high court under Roberts’ leadership.
In earlier decades, the high court upheld the sweep of the law, passed by Congress in the wake of the “Bloody Sunday” violence in Alabama. On March 7, 1965, state troopers with clubs and bullwhips attacked civil rights demonstrators crossing the Edmund Pettus Bridge in Selma.
In a significant departure from prior court rulings, the justices in 2013 ended the VRA Section 5 requirement that states and other localities with a history of race discrimination obtain federal approval for any electoral changes. Taking the lead for a 5-4 majority, Roberts wrote that the problems that so-called Section 5 was designed to correct no longer existed.
“Our country has changed,” Roberts wrote.
That 5-4 decision in Shelby County v. Holder left intact Section 2, related to direct government discrimination, but the majority now appears poised to curtail its coverage in redistricting.
After Black voters and civil rights advocates challenged the seven-district congressional map as discriminatory, a US three-judge district court ruled that it diluted the votes of the Black votes under Section 2’s prohibition on practices that deny a person the right to vote on account of race.
The three-judge court said a second majority-Black district was possible, based on traditional redistricting criteria tied to the size of a population and their geographical compactness.
The judges concluded in their decision that, “under the totality of the circumstances, including the factors that the Supreme Court has instructed us to consider, Black voters have less opportunity than other Alabamians to elect candidates of their choice to Congress.”
As the Supreme Court on Monday restored the original map with only one Black-majority district and agreed to hear the legal merits of the case next session, the majority declined to explain its rationale.
Roberts separately dissented, saying he believed the lower court’s map, and a second-Black majority district, should have permitted for the 2022 election cycle while the justices resolved the larger questions and set standards for future elections.
Regarding the timing of the case, Kagan countered for the three liberal dissenters, “Alabama is not entitled to keep violating Black Alabamians’ voting rights just because the court’s order came down in the first month of an election year.”
“(S)ubsequent elections,” the chief justice wrote, “would be governed” by the Court’s final decision in the dispute, likely to handed down in 2023.
Alabama state lawyers have advocated for a greater use of race-neutral criteria in redistricting. Kagan and the other liberal dissenters said their arguments were “premised on an entirely new view of what the law requires” and would likely lead to fewer districts where minority voters are able to elect their preferred candidates.
“The District Court here did everything right under the law existing today,” she continued. “Staying its decision forces Black Alabamians to suffer what under that law is clear vote dilution.”
In concluding that Blacks merited a second majority-Black congressional district because of their population and location, the judges also took account of another element for a Section 2 violation, “that voting in the challenged districts is intensely racially polarized.”
“This,” the judges added, “is not genuinely in dispute.”