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Supreme Court to weigh use of race in congressional redistricting

Congressional Black Caucus members told the justices that a decision could reduce minority representation in Congress

The Supreme Court building is seen at sunset in Washington.
The Supreme Court building is seen at sunset in Washington. (Bill Clark/CQ Roll Call file photo)

The Supreme Court will hear oral arguments Tuesday in a congressional redistricting case from Alabama that could further weaken a federal law meant to prevent racial discrimination in elections.

The justices agreed to review a lower court ruling that found Alabama’s new congressional map likely violated the Voting Rights Act of 1965 because only one of the seven districts is majority Black in a state where more than a quarter of the population is Black. That three-judge panel ordered the state to draw a second district where Black voters can choose their favored candidate.

Alabama told the Supreme Court that the Voting Rights Act cannot force the state to take race into account when drawing its congressional districts, while the voters who challenged the map have said that’s exactly what Congress meant to allow the last time it overhauled the law in 1982.

The court already allowed Alabama to use the map for the midterm elections in November, and it has only grown more conservative since the last time it restricted the scope of the Voting Rights Act two years ago. In the meantime, efforts in Congress to update the law have stalled over the past decade.

Legal experts such as Paul Smith, senior vice president of the Campaign Legal Center, say the Supreme Court will likely decide in favor of Alabama and rule to weaken the protections against racial discrimination found in Section 2 of the law.

Smith said the case fits in the court’s broader reconsideration of how the law can take race into account, as several conservative justices have argued for a “colorblind” interpretation of the Constitution that casts doubt on the use of race-based policies.

“It’s really an unfortunate development, but it’s part of this broader movement toward colorblindness that I think we’re going to see in the court this term,” Smith said during a panel discussion.

A group of Congressional Black Caucus members, led by Democratic Rep. Terri Sewell of Alabama, told the Supreme Court in the case that such a decision could reduce minority representation in Congress.

“Such outcomes would upend redistricting processes and maps nationwide and would undermine the representation of Black Americans and other minorities in Congress, state legislatures, and other representative bodies throughout the country,” the lawmakers wrote in a brief.

Limits of the VRA

Alabama has argued that the Supreme Court should find that Section 2 of the Voting Rights Act violates the Constitution when it requires states to take race into account when drawing maps, an outcome that would not only keep the current map in that state but change the legal landscape across the country.

Zach Smith, a legal fellow at the Heritage Foundation, said questions that Chief Justice John G. Roberts Jr. and Justice Brett M. Kavanaugh ask at oral arguments could preview whether the high court goes that far.

“I suspect the back and forth we will hear at the argument is that inner conversation, not only between the conservative and the liberal justices, but really among the conservative justices themselves, to see if there is that appetite among the justices to kind of take that very large step,” Zach Smith said.

In February, Roberts was in the minority of a 5-4 decision that allowed Alabama to use its existing map in November, writing that the lower court “properly applied existing law in an extensive opinion with no apparent errors for our correction.”

And though Kavanaugh voted in favor of allowing Alabama to use its map for the fall election, he wrote separately that he did so because of proximity to the state’s elections, rather than because of its merits.

But Roberts and Kavanaugh both voted with the conservative majority in the last Supreme Court case that narrowed the VRA, in which the justices made it tougher for challengers to prove that election rules violated Section 2 of the law.

That 2021 decision in Brnovich v. DNC was the latest of several rulings that have narrowed the VRA, starting with the 2013 decision in Shelby County v. Holder. That ruling wiped out a part of the law that required states with a history of discriminatory voter laws to get any changes precleared with the Justice Department.

“I think this is a Supreme Court that has taken a sharp turn and has grown increasingly hostile to voting rights more broadly,” Yurij Rudensky, senior counsel at the Brennan Center for Justice at New York University Law School, said.

Congress has not passed an update to the VRA since 2006, leaving the Supreme Court as the final word on the anti-discrimination law. Congress first passed the VRA in 1965 and extended it in 1970 and 1975, before overhauling the law in 1982 and reauthorizing it again in 2006.

The case may turn on those changes made in 1982. Congress made them in response to a 1980 Supreme Court decision that found that a state violated the VRA only when challengers proved that the state had discriminatory intent.

Weighing factors

In the current case, Alabama argued that the new map proposed by a lower court prioritized race over other interests, such as grouping communities with similar industries, or tied to a particular military base.

Alabama argued that the VRA “cannot operate in the way that the court below conceived of it: imposing an affirmative obligation upon the States to ensure that wherever a majority-minority district can be drawn, at whatever sacrifice to race-neutral redistricting criteria, it must be drawn.”

Republican members of Alabama’s House delegation agreed in their own brief, arguing that the lower court had effectively prioritized race over other redistricting concerns to support a second Black district in the state.

“Section 2 should not be read to require states to adopt ‘proportional’ maps that would never exist under neutral criteria, for such maps would themselves violate the statute and the Constitution,” the lawmaker brief states.

The voters who challenged the state’s map argued that the law allows consideration of race as part of a broader balancing test to determine whether minority voters have been harmed — and does not require them to prove that Alabama officials intentionally discriminated when they drew the map.

The challengers told the court in the case that Alabama has a history of discriminating against Black voters and split counties in the state’s Black Belt — named for its soil — which contain almost half of the state’s Black population.

Lawmakers weigh in

The Biden administration and several members of Congress filed briefs in the case that backed the challengers. The Biden administration, which will participate in oral arguments, told the court that Congress had the power to protect minority interests in voting and did so.

“It would be extraordinary to hold that the Fourteenth Amendment, which itself empowers Congress to combat racial discrimination, disables Congress from adopting Section 2’s limited measures to ‘ensure that citizens of all races have equal opportunity to share and participate in our democratic processes and traditions,’” the administration’s brief said.

Sens. Patrick J. Leahy, D-Vt., Richard J. Durbin, D-Ill., Lisa Murkowski, R-Alaska, and a bipartisan group of former members of Congress told the court in a brief that Alabama’s position would overly restrict the VRA, which wasn’t their intention when they wrote the latest version.

And the group of CBC members argued in their own brief that Alabama’s reading of the law would undermine the major changes Congress made to the VRA in 1982 to expand protections for special districts, and reduce the impact that an increased number of minority members has had on Congress.

The CBC brief said that “over time — in big ways and small — the representation, mutual respect, and dialogue fostered by majority-minority districts can lead to meaningful communication, awareness, and changes in perspective in Congress and beyond.”

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