Alabama’s claims about the role race should play in redistricting are just one of many claims made by states defending their maps in court that would reduce the scope of the Voting Rights Act – as Republican-controlled states enact new voting restrictions on key battlegrounds. Some of the GOP states’ arguments seem to go beyond even what a conservative 6-3 court would be willing to sanction.
At stake is the role that a provision of the law known as Section 2 will play in combating racially discriminatory cards in the future. The provision prohibits voting procedures “that are not equally open to participation by members” of a protected class, such as racial minorities, and it has been used to invalidate cards meant to dilute the power of voters of color. In response to lawsuits filed in various GOP-run states challenging their maps under Section 2, states have advanced a litany of arguments that would limit the use of voting rights law in redistricting cases.
“Republicans are in the mood to throw mud on the wall,” said Michael Li, senior democracy program attorney at the liberal-leaning Brennan Center.
The Supreme Court has not officially endorsed Alabama’s claims. Some justices said their votes were driven by how the map redesign would disrupt election planning in Alabama.
“The court was careful to say that this was not a decision on the merits, so we will take them at their word,” former attorney general Eric Holder told reporters on Thursday. head of the National Democratic Redistricting Committee. “We will use Section 2 of the law in other parts of the country.”
Yet even the only conservative justice to oppose the ruling, Chief Justice John Roberts, referred to a “wide range of uncertainties” that have arisen in how courts should approach claims for dilution of stocks. votes cast under the Voting Rights Act.
Supreme Court rulings that ease the redistricting law’s clout could reduce the number of representatives of color in Congress and state legislatures, legal experts say. However, some conservatives have argued that policy changes in electing minority candidates — white voters helping propel multiple people of color into Congress — will minimize the impact of such a change in the law.
“This notion that you somehow have to have a majority black district to elect a black representative was probably a lot more true in 1965 than it is in 2022,” said Jason Torchinsky, a Republican election attorney.
What role should race play in redrawing Voting Rights Law compliance?
The arguments advanced by Alabama focus on the technical process the courts use to consider claims to redistrict the Voting Rights Act, but they go to the heart of how race should be used as a corrective under of the law. If Alabama can convince the Supreme Court to turn away from the racial awareness that has historically been deployed in Voting Rights Act vote dilution cases, it will make those cases harder for minority voters to bear.
“It comes back to the question of the role of race in drawing districts,” Ben Ginsberg, a former Republican redistricting attorney, told CNN.
Under a 1986 Supreme Court precedent in Thornburg v. Gingles, redistricting challenges brought under the Voting Rights Act must pass what is commonly known as the Gingles test in order for the courts cancel a card. According to the first part of the test, the challengers must prove that there is a relatively compact community of minority voters who could be attracted to a minority-majority district. The other two strands have to do with racial polarization in voting: does the minority population vote in a politically coherent way? And does the racial majority vote as a bloc to defeat the candidates favored by minority voters?
Alabama says that under the Voting Rights Act, states should only be required to draw majority-minority districts in circumstances where a race-blind approach would have produced those districts. This means the challengers could not use race rather than other redistricting criteria to prove that the first prong of the Gingles test could be met.
“Alabama’s proposal would turn the VRA into a race-blind law that would only look at what this hypothetical race-blind process would produce,” said Nicholas Stephanopoulos, a Harvard law professor who specializes in election law. . “And so the consequence would just be substantially less minority representation in America.”
The approach advocated by Alabama “appears to be reverse engineering to try to make it harder for plaintiffs to win these cases,” said Rick Hasen, a professor of election law at the University of California-Irvine.
Should the Voting Rights Act apply to redistricting?
While Alabama makes complicated arguments to the Supreme Court over the technical approach to complying with the Voting Rights Act, Texas is shooting at the moon with its assertions about the scope of the law.
Part of what makes Texas’ argument so overblown is that it ignores the law’s legislative history, legal experts said. When Congress renewed the Voting Rights Act in the past, its adjustments to Section 2 were aimed at determining how the courts should apply it when redistricting.
“If Judge Thomas was correct that Section 2 was never meant to apply to redistricting, Congress certainly seemed to think otherwise every time it renewed the law and changed the redistricting standards,” Hasen said.
Can private parties file claims under the Voting Rights Act?
If this argument, which has also been made by Georgia in the Voting Rights Law redistricting challenges brought there, were approved, it would mean that individuals – who currently bear the brunt of the case under Article 2 – would no longer be able to file such challenges. , leaving enforcement to civil lawsuits brought by the Department of Justice.
Legal experts are deeply skeptical that the argument could gain traction with other judges, given that courts – all the way up to the Supreme Court – have routinely heard cases brought privately under Section 2. , including the case that produced the Gingles test.
“The idea that none of these lawsuits could ever have been brought because private plaintiffs can sue goes against, literally, the whole history of Section 2,” Stephanopoulos said.
How should multi-ethnic coalitions configure themselves to comply with the Voting Rights Act?
Unlike some of the other arguments made by the GOP states, their assertions about how multi-ethnic coalitions should be considered under the Voting Rights Act would not require the Supreme Court to radically change its case law.
States like Texas argue that their opponents’ legal challenges should fail because the opponents are asking for majority-minority districts that would combine racial or ethnic minorities to achieve a majority.
Many lower courts have OK’d Voting Rights Act districts drawn with multi-ethnic coalitions, but some courts have not. The Supreme Court has yet to address the issue directly, and if the justices rejected the use of multi-ethnic coalitions, the “Supreme Court would not have to take a totally aberrant position,” Stephanopoulos said.
In the case of Texas, the state says the Voting Rights Act does not require Texas to create a majority-minority district by combining black and Hispanic voters, as challengers seek to do in the state. .
The impact of such a move would be less extreme than one that embraces the more sweeping arguments of GOP states. Coalition districts are already difficult to bring together under the Voting Rights Act because, according to the Gingles test, these different ethnic groups must display common political preferences.
“It’s not like the court is saying, ‘You can’t have the Rainbow Coalition,’ it would affect a lot of districts and overturn existing agreements,” Hasen said. “I think there’s just uncertainty about it.”