By the slimmest of margins, the Supreme Court on Monday evening gave a hint, and it could be a strong one, that its conservative majority is prepared to consider eliminating any consideration of race in drawing up new election district maps for congressional seats.
By a vote of 5-to-4, the Court allowed the state of Alabama to use a new congressional districting plan in this year’s election – a plan that a lower federal court decided is illegal under the 1965 Voting Rights Act by diluting the voting power of the state’s black citizens.
In an election cycle in which the Democratic Party may have difficulty maintaining its current slim majority in the House, the plan that Alabama will now use will create only one of the seven districts with a majority of black population, instead of the two that challengers had persuaded the lower court to approve. Blacks in Alabama, as well as elsewhere, strongly favor Democratic candidates.
The Supreme Court’s action also took on added significance for voting rights generally, because it involves the meaning of Section 2 of the 1965 law, the only remaining section that is actually capable of preventing denial or dilution of minority votes because the Supreme Court has taken away the other key part of that act.
Under Section 2, which Congress passed as part of the historically important law seeking to bolster voting rights guaranteed to minorities by the Constitution’s Fifteenth Amendment, both intentional racial discrimination and a racially negative impact are outlawed.
Since the Supreme Court has ended the prospect of constitutional challenges to partisan “gerrymanders” in redistricting (that is, drawing lines expressly to favor one political party’s candidates), Section 2 remains a way at least to challenge racial gerrymanders.
But, if redistricting plans challenged under Section 2 can take no account of racial factors, as Alabama state officials are arguing in this dispute, that would make it extremely difficult to win claims of racial bias in drawing such maps.
The Court’s action Monday was not a final ruling on the legality of the Alabama map, as two Justices who were in the majority stressed in an opinion defending what the Court had done. But the action was an indication that the Court will be taking seriously the state officials’ suggested new approach to Section 2 cases. (One of the main reasons that the Court will act to block a lower court ruling is that challengers to that ruling are considered to have a good chance of getting the Justices to overturn it. A frivolous challenge is not enough.)
The Court acted Monday through a series of separate orders, with these results:
** It put the lower court ruling on hold, with the Court’s five most conservative Justices in the majority and with the usually conservative Chief Justice, John G. Roberts, Jr., dissenting from that result although not criticizing the majority, as the Court’s three dissenting liberal Justices did in a separate opinion.
** With no dissents, the Court agreed to rule – but not until its next term, starting in October – on the legality of the plan for Alabama’s districts in which the state will choose its seven Representatives. That would mean a final decision would probably not emerge until sometime next year.
In filing those two appeals to defend its congressional map, state officials argued that it would at least violate the 1965 Voting Rights Act and might also violate the equality principles of the Constitution to draw new election maps based upon any use of the race of the voters as they are sorted into districts.
Modern computer-based technology, using the most granular population data from the federal Census, can divide up election districts equally without any use of race, so that is what must be done in redistricting, according to the state’s argument.
The three liberal Justices in dissent Monday said that the 1965 law has always been understood to involve, necessarily, the consideration of race in order to determine what election procedures might dilute the strength of minorities at the polls.
Justice Elena Kagan, joined by Justices Stephen G. Breyer and Sonia Sotomayor, accused the majority of acting hastily and in an unexplained “prejudgment that it is ready to change the law” on voting rights. Alabama officials, the opinion said, were making a legal claim that “we have never adopted” and that conflicts with the Court’s multiple precedents interpreting the scope of Section 2.
The dissenters argued that the Court should not have taken any action on the state’s objection to the lower court decision before it had conducted a full-scale review, with lengthy written legal briefs and hearings. They protested another use of what has come to be called the Court’s “shadow docket,” on which it takes significant actions without full consideration and often without explaining why it has acted as it has.
The Kavanaugh opinion responded that the Court would not rule on the legality of the Alabama election map without full briefing and argument, next term.
In the decision that the Court has now blocked, the lower court ruled that Alabama’s state legislature, in drawing lines for elections to the state’s seats in the House of Representatives, created only one district with a majority of black voters even though a second such district should have been drafted.
Without a second district that gave blacks a chance to elect candidates of their choice, the lower court said, that would dilute the power of minority voters in the part of the state where they are most heavily concentrated – an area that includes the urban areas of Mobile and Birmingham. (That area is sometimes called Alabama’s Black Belt, which has come to have two meanings: one is a reference to its fertile soil, the other to the concentration of blacks in a thick belt across the center of the state.)
If there were only one such district with a black majority, according to the lower court, 27 percent of the state’s population would have election influence only over 14 percent of the House seats. While voting rights law does not guarantee absolute proportional representation, it does seek to assure minority voters that they will have a real chance to elect representatives of their choosing, especially when they are concentrated in particular areas and tend to vote as a bloc but often can be cancelled out by whites voting in a bloc.
Among Justices voting to block the map required by the lower court were Justices Brett M. Kavanaugh and Samuel A. Alito, Jr., who joined in an opinion by Kavanaugh seeking to explain the orders and also to answer the liberal dissenters. Justices Amy Coney Barrett, Neil M. Gorsuch and Clarence Thomas also supported the Court’s action, but did not write anything.
It would have taken those five votes to stop the lower court decision. It took the votes of only four Justices, however, to grant review of the two appeals by Alabama officials.
The Kavanaugh opinion, aside from responding somewhat critically to the Kagan dissenting opinion, sought to justify the Court’s order against the lower court by invoking a long-standing principle that election laws should not be changed when the calendar is close to election, because that can disrupt election processes and confuse voters.
That justification, though, drew sharp criticism from the Kagan opinion, noting that there is a good deal of time remaining before election for the drawing of new maps to create two black-majority districts. The state legislature, that opinion said, had created its plan “in less than a week.”