The conservative majority on the Supreme Court appears to have several options available to them ready to limit a key provision of the Voting Rights Act.
As the justices consider Louisiana’s congressional map, a sporadic change to the Supreme Court, expectations are growing that the Supreme Court’s decades-old framework that forces states to draw additional majority-minority districts under the key provision will be restricted in one way or another.
At the heart of the arguments is Section 2 of the law, which prohibits electoral practices that result in racial minorities having fewer opportunities to participate in the political process and elect representatives of their choice.
Republican-led states are increasingly criticizing the Supreme Court’s framework for creating endless litigation and forcing states to unconstitutionally consider racial issues in order to comply.
Justice Brett Kavanaugh repeatedly suggested in oral arguments earlier this month that he should rule that race-based redistricting measures had reached their logical endpoint. Kavanaugh brought it up to three different arguing attorneys.
It’s a similar rationale to the court’s 2013 decision striking down another provision of the Voting Rights Act that created a formula that required jurisdictions with a history of discrimination to obtain pre-clearance from the Justice Department before adopting novel voting rules.
It would also comply with the court’s decision Invalidate affirmative action in university admissions. When the court endorsed affirmative action in 2003, it expressed the expectation that it would no longer be necessary in 25 years.
“This Court’s cases in various contexts have demonstrated that race-based remedies are permissible for a period of time, sometimes for a long period of time, in some cases for decades,” Kavanaugh said in his argument last week. “But that they should not be unlimited and should have an end point.”
Judge Amy Coney Barrett, President Trump’s third conservative nominee to the court, took a different approach.
The 14th Amendment allows Congress to enforce its guarantees of equal protection and due process, and the Supreme Court has ruled that the legislature’s remedies must be “congruent and proportionate” to the rights violated. Barrett suggested that the test could be used to examine whether Section 2 of the Voting Rights Act constitutes a valid exercise of Congress’s enforcement powers under the 15th Amendment, which prohibits intentional discrimination in voting.
“If it goes beyond what the 15th Amendment requires of its own force, but Congress has actually chosen the Voting Rights Act as a remedy, does that impact the question of whether or not it can continue indefinitely, that at some point it will no longer be congruent and proportionate?” Barrett once asked.
Judge Neil Gorsuch, Trump’s first nominee, repeatedly pressed whether it was acceptable for a federal court to “intentionally discriminate on the basis of race” to remedy a violation of the Voting Rights Act.
Meanwhile, Justice Samuel Alito largely questioned the specifics of the Louisiana case, questioning whether the lower courts had faithfully applied the court’s existing Section 2 framework — which requires a minority group to prove it is enormous enough and geographically compact enough to form a majority in a novel district.
After lower courts ruled that only one majority-black county on Louisiana’s map violated Section 2, the state added a second, creating a narrow path that stretched from Baton Rouge in the southern part of the state to Shreveport near its northwest corner.
“There is a big difference and it raises a serious question as to whether the black population was geographically compact within the county in question on the illustrative map,” Alito noted.
And even before the current phase of the Louisiana litigation reached the justices, some members of the conservative majority had long advocated sweeping changes to the court’s Section 2 approach.
Justice Clarence Thomas, the court’s longest-serving justice and an ardent supporter of a “colorblind Constitution,” has written for years that Section 2 only regulates people’s access to the vote and the counting of their votes, not the design of their voting districts.
While the question remains as to which path the court will take, one vigorous is becoming increasingly clear: the alliance that formed two years ago could fall apart.
Rejection a GOP-drawn congressional map In Alabama, Chief Justices John Roberts and Kavanaugh broke with their conservatives and sided with the liberal wing of the Supreme Court — Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson — to uphold the court’s Section 2 precedents.
“The heart of these cases is not about the law as it exists. It is about Alabama’s attempt to reshape our Section 2 jurisprudence,” Roberts wrote at the time.
CNN reported later the dynamics behind the scenes. When the justices took the first vote at their conference following oral argument, a solid majority had not yet emerged. With other conservative justices willing to curb Section 2, Roberts later reportedly negotiated with Kavanaugh to form a narrow 5-4 majority.
More recently, as the fight has focused on the Louisiana map, the justices’ unusual decision to hear a reconsideration in the case was widely seen as a way to directly assess the future of Section 2 from a broad perspective.
“This case will test whether the arc of our universe still bends toward justice — or whether it has retreated in on itself,” Alanah Odoms, executive director of the American Civil Liberties Union of Louisiana, said in a statement.
The heightened stakes were evident in last week’s confrontation. NAACP Legal Defense Fund President Janai Nelson delivered a full-throated defense of the two-year-old Alabama decision, Allen v. Milligan, in her opening statement.
“In this case,” Roberts interjected shortly afterwards, “of course existing precedent was taken for granted.”
Nelson told Roberts he was right.
“I don’t think he feels like the Milligan decision really impacts what he does here, and I think he wanted to make that clear,” said Jason Torchinsky, a partner at Holtzman Vogel, who is representing Louisiana Gov. Jeff Landry (R) in the case. “It was one of the very few things he really investigated. But it was his first question.”
Last month, Roberts celebrated 20 years on the Supreme Court, and one of his greatest legacies was the conservative majority’s moves on race — in voting, education and more.
“It is a dirty business to divide us by race,” Roberts wrote in a 2006 redistricting resolution.
Looking at the Louisiana map, Roberts and the other justices are now specifically weighing whether the deliberate exploit of race in drawing an additional majority-minority district to comply with Section 2 conflicts with the 14th or 15th Amendments.
If the practice is completely banned, The New York Times It is estimated that more than a dozen Democratic-held counties in the South could be eliminated. Fair Fight Action, the group founded by former Georgia Democratic gubernatorial candidate Stacey Abrams, has found it could create an additional one 19 unthreatening Republican seats.
Regardless of which path the Supreme Court takes, the Louisiana case has led observers on all sides to believe that Section 2 is headed for major changes.
Rep. Jonathan Jackson (D-Illinois), who predicted the postponement, announced after attending the courtroom argument that he would join Rep. Ro Khanna (D-Calif.) in introducing a constitutional amendment to counter the court’s decision.
Louisiana Attorney General Liz Murill (right), who was also in attendance, told reporters afterward that the court needed to “make sense” of its own Section 2 precedents.
“And what we heard today is that this is really hard — even for them,” she added.
