The Supreme Court, led by Chief Justice John Roberts, ruled Thursday that the Voting Rights Act still acts as a guard against racial gerrymandering in this country. Make no mistake, this is big. The Supreme Court halted its steady march toward eviscerating protections for voters.
The land’s highest court is experiencing a crisis of legitimacy. Roberts does not want to be the captain of the U.S. Supreme Court Titanic, presiding over an institution that is utterly losing the faith of Americans. That may be why Roberts, joined by one of his conservative colleagues, Justice Brett Kavanaugh, and the three liberal justices on the bench rejected Alabama’s attempts to whittle away at what is left of our country’s watershed voting rights law.
The court made good on the promise that Section 2 still acts as a guardrail against lawmakers who attempt to dilute minority voting rights.
In 2013, the court famously trashed half of the landmark 1965 Voting Rights Act. It essentially told us not to worry because the other half of the law, Section 2, remained. On Thursday, the court made good on the promise that Section 2 still acts as a guardrail against lawmakers who attempt to dilute minority voting rights.
Section 2 prohibits district lines that dilute minority voting power. And it does. At least in a case like the court tackled Thursday, which — as Justice Elena Kagan noted in oral arguments — is “kind of a slam dunk.”
In 2021, Alabama’s GOP-dominated Legislature drew district lines for its seven congressional seats. District lines can lead to vote dilution by both “packing” and “cracking” minority voters. Packing refers to the process of putting minority voters in one district so they cannot exercise their voting power in other districts. Imagine lawmakers drawing district lines that put 80% of the members of a minority group into one district. That’s packing. Cracking, a complementary process, refers to the process of fanning minority voters out throughout other districts so that they cannot amass the numbers needed to select the candidates of their choosing.
This is exactly what challengers said the Legislature did in Alabama. Black people make up more than 1 in 4 residents in the state. But the challengers allege that under the district lines, Black people were “packed” into one district, and then “cracked” throughout the others. This means that while Black people amount to more than a fourth of the residents in the state, they can band together to select a candidate in only one of the seven districts. Challengers alleged that there should have been two majority-Black districts, which would amount to 28% of the districts.
The court largely agreed. The majority concluded that the challengers demonstrated it is likely there is a minority group sufficiently large and compact to form a majority in a second district.
This case isn’t a close call. Three judges in Alabama ruled that the state’s congressional district lines likely violated the Voting Rights Act. But a bare majority of the Supreme Court allowed those district lines to be used for the 2022 elections. That is why Thursday’s ruling is more than a bit surprising.
The court not only correctly concluded that those challenging the district lines in this case demonstrated a likelihood of succeeding in their Voting Rights Act claim, but it also — at least for now — rejected Alabama’s argument that as long as states use race-neutral factors when drawing district lines, it essentially doesn’t matter if those lines end up harming minority voting power. This would have neutered what is left of Section 2.
The court also (again, at least for the time being) dismissed Alabama’s even more radical argument that Section 2 itself is in tension with the Constitution. The theory is that because Section 2 guards against denying or abridging one’s vote on the basis of race, it forces lawmakers to take race into account when drawing district lines. This means that when lawmakers make race-conscious decisions, they are violating the 14th Amendment’s equal protection clause, which forbids states from taking race into account. For those of you hoping that this might mean the Supreme Court upholds affirmative action programs as constitutional under the equal protection clause, it almost certainly does not. This case is all about voting, and don’t look for its logic to extend out to other areas.
Jessica Levinson is a Loyola Law School professor and MS NOW columnist.