High court seems chilly to ‘race neutral’ reading of Voting Rights Act

A majority of the Supreme Court declined on Tuesday to embrace an argument advanced by Alabama calling for a “race neutral” reading of a key provision of the Voting Rights Act.

But the justices nonetheless signaled that there could be changes coming to the enforcement of the landmark 1965 legislation.

The case revolves around a challenge to Alabama’s newly redrawn maps for the state’s seven Congressional districts. A group of Black Alabama residents sued, arguing that their voting power was being diluted by carrying forward just the state’s one historical majority-minority district instead of drawing two, despite the fact that the state is over a quarter Black.

Lower federal courts agreed and ordered a redrawing of the maps ahead of the November elections. But the nation’s highest court stayed that order and agreed to hear Tuesday’s arguments.

Alabama argued during Tuesday’s oral arguments that its districts were drawn with “race neutral” principles, by not looking at racial demographics when initially drafting the map. The state argued that in light of that, a key section of the Voting Rights Act — which increased political participation and representation for Black and other voters of color — should effectively be reinterpreted to require some sort of showing of discriminatory intent by the government to require the creation of a majority-minority district.

Alabama’s interpretation of the Voting Rights Act could lead to the election of fewer Black members across much of the South, as well as in other states.

Most of the court’s justices appeared skeptical of the state’s broadest arguments about looking at the law through a race-neutral lens.

“I think I’m struggling in the same way that some others have about narrowing down exactly what your argument is,” Justice Amy Coney Barrett, a 2020 appointee of former President Donald Trump, said during questioning of Edmund LaCour Jr., the solicitor general of Alabama. “I disagree with you — and agree with Justice [Elena] Kagan’s characterization of the intent point. Our precedent and the statute itself says that you don’t have to show discriminatory intent, so put that aside,” she said.

And neither Chief Justice John Roberts, an appointee of President George W. Bush, nor Justice Brett Kavanaugh, a Trump appointee, signaled an openness to Alabama’s race-neutral arguments in their questioning.

But perhaps no justice was more pronounced in their criticism of Alabama’s case than Justice Ketanji Brown Jackson, who forcefully pushed back against the state’s claim that Section 2 of the Voting Rights Act violates the Constitution’s guarantee of equal protection of the laws for all persons.

The 14th Amendment “was drafted to give a constitutional foundation for a piece of legislation that was designed to make people who had less opportunity, and less rights, equal to white citizens,” Jackson said during sharp questioning of LaCour. “With that as the framing and the background, I’m trying to understand your position — that Section 2, which by its plain text is doing that same thing — … that [it] violates the 14th Amendment, given the history and background of the 14th Amendment.”

While LaCour insisted that the state’s map was drawn in a race-neutral manner, Jackson pointedly rejected that contention, alluding to the fact that even efforts to preserve so-called communities of interest or traditional political boundaries had the tendency to be proxies for race in as polarized a state as Alabama.

“Why are you saying it’s a neutral plan, counsel?” Jackson, an appointee of President Joe Biden, asked. “We are talking about a situation in which race has already infused the voting system.”

Even so, key voices in the court’s conservative majority signaled a potential to rework the current test for voter dilution, drawn from the 1986 case Thornburg v. Gingles, in ways that could make it harder to allege voter dilution in political boundaries.

“What the court said exactly in Gingles was that the minority group must be ‘sufficiently large and compact to constitute a majority’ in a reasonably configured district. It didn’t say in a reasonably compact district,” Justice Samuel Alito said, laying out the first of a three-pronged test from Gingles. “Would you agree that whether a district is reasonably configured takes into account more than simply whether it is compact, but also whether it is the kind of district an unbiased mapmaker would draw?”

The latter two prongs are if the minority group is “politically cohesive,” and if the majority “votes sufficiently as a bloc” to block the minority’s preferred candidate — which Alito suggested at one point were merely pro forma requirements.

“As a practical matter, in every place in the South and maybe in other places, if the first Gingles condition can be satisfied, will not the plaintiffs always run the table?,” asked Alito, an appointee of President George W. Bush.

The state is “not going to win on whether the minority group is politically cohesive, they’re not going to win on whether the majority votes as a bloc — which may be due to ideology and not have anything to do with race. It may be that Black voters and white voters prefer different candidates now because they have different ideas about what the government should do.”

The arguments produced some blunt exchanges between the court’s three liberal justices and Alito, who was by far the most hostile member of the court to the position taken by civil rights groups — at least among those justices who took an active part in the arguments.

“Justice Alito gave the game away when he said race-neutral means don’t look at communities of interest, because it’s a proxy for race,” Justice Sonia Sotomayor, an appointee of President Barack Obama, declared at one point. “Indifference to racial inequality is exactly what Section 2 is barring or prohibiting.”

Justice Neil Gorsuch, appointed by Trump, didn’t ask questions during the arguments, so it was hard to discern his position on the issue. Justice Clarence Thomas, nominated to the court by President George H.W. Bush, made only brief comments.

The Roberts Supreme Court has been fairly consistently hostile to the Voting Rights Act, issuing rulings in a series of cases over the last decade-plus that have chipped away at the landmark legislation, which Justice Elena Kagan noted during oral arguments.

“This is an important statute — it’s one of the great achievements of American democracy,” Kagan, an appointee of Obama, declared as she questioned LaCour. “In recent years, this statute has fared not well in this court….So, what’s left?”

Perhaps most notably, the court effectively ended the practice of “preclearance” in 2013, which required states and other jurisdictions with a history of discriminatory voting practices to get changes to election law pre-approved by either the Department of Justice or a federal court.

And last year, in a decision authored by Alito, the court laid out five so-called “guideposts” to assess if election laws were discriminatory under Section 2, which was at the center of Tuesday’s oral arguments. Then, voting rights advocates decried the decision as a surprisingly broad one that would undercut challenges to election laws under discrimination claims.

Tuesday’s case is one of two big voting rights cases in front of the court this term. The second, Moore v. Harper, also revolves around redistricting in North Carolina. There, state Republican lawmakers are arguing that the state Supreme Court has no authority to police its decisions on election law under the controversial “Independent State Legislature” theory, which could dramatically remake American elections by giving state legislatures more power over determining election laws.