Supreme Court told minority representation at stake in case

Potential ruling on Voting Rights Act could 'obliterate' many majority-minority congressional districts, one attorney said

The Supreme Court building on Tuesday. (Tom Williams/CQ Roll Call)
The Supreme Court building on Tuesday. (Tom Williams/CQ Roll Call)
Posted October 4, 2022 at 4:53pm

The ability of minority voters to elect representatives of their choice could nose-dive if the Supreme Court sides with Alabama in a case over the scope of the Voting Rights Act, the law’s defenders told the justices Tuesday.

In the first of several cases this term on race in federal law, Alabama has urged the Supreme Court to overturn a lower court ruling that would require it to draw a second majority-minority district in the state.

As part of a wide-ranging, two-hour argument, Solicitor General Elizabeth Prelogar, who represents the United States before the court, said Alabama’s view of the law would allow states to get rid of those districts and ultimately reduce minority representation in Congress.

“Under the state's approach, nothing would stop Alabama and many other states from dismantling their existing majority-minority districts, leaving Black voters and entire swaths of the country with no ability to elect their preferred representatives,” Prelogar said.

A key issue Tuesday was a requirement that those challenging a congressional map under Section 2 of the Voting Rights Act, early in a case, must present their own version of a map with another majority-minority district. Alabama argued that challengers should be required to draw that map without making race a criteria for the district lines.

Prelogar said that would make it difficult for challengers to ever establish the need for a new district, because “they effectively have to kind of stumble into the district by accident.”

An attorney for one of Alabama’s map challengers, Abha Khanna, went further. Alabama’s view of the law would “obliterate” many majority-minority districts in the country and open them up to legal challenges even before the next redistricting cycle after the 2030 census.

“Make no mistake, nearly every majority-minority district would become a litigation target,” Khanna said.

Lines drawn

Alabama had appealed a judgment from a three-judge panel that its congressional map discriminated against Black voters by drawing only one majority-minority congressional district and splitting up the Black population in the state’s Black Belt — named for its soil — among the state’s other six districts. The Supreme Court case combined two lawsuits from voters in the state challenging the map.

The lower court panel found that Alabama’s map discriminated against Black voters since they are more than 25 percent of the state’s population but can choose their representative in only one of seven districts.

Alabama’s solicitor general, Edmund LaCour Jr., argued Tuesday that the lower court, by allowing the challengers to prioritize race when drawing a map that shows a possible additional majority-minority district, effectively mandated the state to violate the Constitution by dividing up voters by race.

“It cannot be that they can come forward with a map we could never constitutionally draw and force us to draw a map we could never constitutionally draw,” LaCour said.

Justice Ketanji Brown Jackson pushed back on that argument, and she pointed out that the equal protection clause of the 14th Amendment was adopted along with legislation mandating equal treatment for freed slaves after the Civil War.

“That's not a race-neutral or race-blind idea in terms of the remedy,” Jackson said. “And even more than that, I don't think that the historical record establishes that the founders believed that race neutrality or race blindness was required.”

Jackson and the other two justices nominated by Democratic presidents dominated much of the questions throughout oral arguments, though the decision likely will be shaped by the court’s conservative majority.

Precedent questioned

Justice Elena Kagan argued that Alabama had effectively asked the court to overturn its current precedent on redistricting cases.

“What strikes me about this case is that under our precedent it's kind of a slam dunk if you just take our existing precedent the way it is,” Kagan said.

The court’s conservatives criticized some of Alabama’s arguments, with Justice Samuel A. Alito Jr. calling them “far-reaching” and Justice Brett M. Kavanaugh calling them a “broad” attempt to get the court to rewrite its basic VRA precedent, Thornburg v. Gingles.

Many of the questions from Alito and other conservative members on the court focused on the first step of the test established in the Gingles decision, and what map challengers may have to show to push for a new majority-minority district under the VRA.

The court already allowed Alabama to use its map this fall, in a 5-4 decision in which Chief Justice John G. Roberts Jr. dissented along with the three liberal justices. Roberts wrote there that the lower court “properly applied existing law in an extensive opinion with no apparent errors for our correction.”

The case could directly affect the maps in Alabama as well as Louisiana. Several other states, including Texas and South Carolina, are still facing federal litigation challenging their maps under the VRA.

Terri A. Sewell, Alabama’s lone Democrat and lone Black woman in Congress, attended the arguments. Outside the building afterward, Sewell said that “it would be devastating” if the court gave states like Alabama the power to unwind existing majority-minority districts.

“I think that protecting the rights of the Black Belt to have an equal voice, and I dare say the fact that I'm from Selma, but that I live and work in Birmingham, gives me the full array of both urban and rural issues, all of which are connected, because both are underserved communities,” Sewell said.