Breaking – at least temporarily – from years of narrowing the protection for voting rights of America’s racial minorities, the Supreme Court appeared Thursday to have opened a real chance that blacks in Alabama may get a second seat in the U.S. House of Representatives as the Justices saved a key part of the most important federal election law.
Black voters in Alabama have had only one House seat since 1992, giving them less than 15 percent of the state’s seven-member delegation even though they make up more than 27 percent of statewide population. When they gained one House seat that they could control, in a lower-court ruling 31 years ago, that was the first they had had since right after the Civil War.
But more significant than the potential impact in that one state, Thursday’s ruling – splitting the Court multiple ways and producing 112 pages of opinions – salvaged a part of the 1965 federal Voting Rights Act that had been under severe and rising challenge in recent years. In this very case, the Justices had been asked to rule that provision (so-called Section 2) unconstitutional on the theory that it put too much emphasis on race in voting rights cases.
Overall, the result was a considerable surprise, given the Court’s recent pattern of cutting back on the voting rights of racial minorities. One way to interpret the outcome is that the majority may be reacting to the pervasive criticism of the deep conservatism of the Court’s six members now in control. While the Court insists it does not make rulings to achieve political praise or support, the Justices no doubt are acutely aware of the discontent among liberal advocacy groups over the conservative trend of recent years, raising the prospect that the Court’s structure or membership might be altered.
Thursday’s outcome, however, was not strongly defended within the Court Thursday. The Court split 5-to-4 in supporting Section 2 and in creating an opportunity for a second black House district in Alabama, and one of the five in that majority – Justice Brett M. Kavanaugh – hinted in a separate opinion for himself that he was skeptical about continued use in the future or using racial factors in disputes under Section 2.
For this new decision, though, he joined most of the majority opinion written by Chief Justice John G. Roberts, Jr., which declared that race could continue to be a factor in judging the impact of voting laws, including laws to draw new election districts, so long as it was not the “predominant” factor and did not actually dictate a fixed share of voting strength for minorities.
The ruling also upheld the continuing use by courts in voting cases of the formula that the Court first adopted 37 years ago. The formula is designed to assure that blacks who have a significant share of a state’s potential voting power do not lose it or have it “diluted.”
Joining in full in the Roberts opinion were the three liberal Justices, Elena Kagan, Sonya Sotormayor and Ketanji Brown Jackson.
That Roberts was the author of the main opinion, and that he favored salvaging the use of race as a factor in election cases, was itself something of a surprise since – in past rulings – he had become increasingly critical of court reliance on race as a major factor in legal outcomes.
In fact, Roberts himself was the author of a famous 2013 ruling by the Court, in anther Alabama voting rights case, that all but nullified another part of the 1965 Voting Rights Act that required states with a history of racial bias in elections to justify any changes they made in voting laws. As a result of that ruling, only Section 2 – the clause at issue on Thursday – remains as a check on laws that dilute the voting strength of minorities.
Of the four Justices who dissented Thursday, three – Justices Clarence Thomas, Neil M. Gorsuch and Amy Coney Barrett – openly expressed doubts about the constitutionality of Section 2 as applied by the majority. The fourth, Justice Samuel A. Alito, Jr., seemed somewhat more hesitant on that point, although he expressed doubt that any second black House district could be drawn without the illegal use of race.
When Alabama’s state legislature in 2021 drew up new voting district maps for the state’s seven seats in the U.S. House, the result maintained a single district dominated by blacks – in an area of the state long known as “the Black Belt,” partly because of its racial makeup but also because of its rich soil.
That result was challenged in two federal courts, resulting in rulings that struck down the single black district approach and concluding that blacks had a fair opportunity of proving the need for a second black district. The Supreme Court temporarily blocked that result, allowing those maps to be used in the 2022 election, but agreeing to hear the state’s defense of the maps.
The main legal point made by the Roberts majority opinion was a firm rejection of an argument by the state of Alabama under the 1965 law. The state contended that any new districting map could only be struck down for diluting black voting if there were no race-neutral way to draw the districts – thus in essence eliminating any use of race in drawing the lines. The 1965 law has never been applied that way, the Court ruled.
Thursday’s decision does not guarantee that a second black district will actually be required when the case returns to the lower courts in Alabama, but the majority gave a number of hints in its opinion that there ws a good chance that that could emerge.
Thursday’s ruling came as the Justices continued their recent pace of turning out decisions, with the aim of finishing the current term later this month or in early July. One of the decisions still being awaited is a test of a constitutional theory on the power of state legislatures to control – without interference from state courts – how U.S. House districts are drawn and how presidential elections are conducted.
