SCOTUS Hears Arguments In Two Voting Rights Act Cases Today

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Supreme Court reporter Ian Millhiser reports, The Supreme Court is likely to weaken, but not destroy, the ban on racial gerrymandering:

Alabama Solicitor General Edmund LaCour came to the Supreme Court on Tuesday with a raft of ambitious arguments — many of which would dismantle one of the key remaining prongs of the Voting Rights Act, and potentially give states broad authority to draw legislative maps that favor white voters at the expense of racial minorities.

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Not long after LaCour began to lay out his case in Merrill v. Milligan, however, it appeared that many of his arguments are so fundamentally flawed that even this Supreme Court is unlikely to sign on to them.

Republican appointees Chief Justice John Roberts and Justice Amy Coney Barrett both pointed out that his proposed reading of the Voting Rights Act cannot be squared with the law’s text. Even Justice Samuel Alito, the Court’s most reliable partisan, acknowledged that LaCour offered some proposals that are “quite far reaching” and others that are more “basic,” and he seemed to urge LaCour to stick to his more “basic” ideas.

None of this means that Alabama is likely to lose this case. It’s fighting to keep congressional maps that allow Black Alabamans to elect their preferred candidate in only one of the state’s seven districts — or 14 percent of those districts — although Black people make up about 27 percent of the state’s population. Two different sets of plaintiffs argue those maps violate the Voting Rights Act’s prohibition on race discrimination in voting.

But several of the justices, including Roberts, Barrett, and Justice Brett Kavanaugh, seemed to spend the morning casting about for a way to rule in Alabama’s favor without explicitly overruling nearly four decades of established voting rights law stretching back to the Court’s decision in Thornburg v. Gingles (1986).

That won’t be an easy task. Justice Elena Kagan said early in Tuesday’s argument that the Merrill plaintiffs’ challenge to Alabama’s maps is a “slam dunk” under Gingles and the Court’s precedents following Gingles. A lower court’s three-judge panel that included two judges appointed by former President Donald Trump agreed with Kagan, saying that the question of whether Alabama violated the law is not “a close one.”

But a majority of the justices seemed disinclined to announce a broad, sweeping reinterpretation of the Voting Rights Act that ignores much of the law’s text. And they also seemed disinclined to overrule Gingles and replace it with one of Alabama’s proposals to legalize many forms of racial gerrymandering that have historically been forbidden.

Based on oral arguments Tuesday, the most likely outcome in Merrill is a narrow decision for Alabama, bailing out the maps drawn by the state’s Republican-led legislature, but holding off for another day the question of whether to legalize many forms of racial gerrymandering en masse.

To be clear, such an outcome is not a victory for proponents of voting rights. This Supreme Court, with its 6-3 Republican-appointed majority, appears eager to centralize power within itself, and to maximize its own authority to decide cases according to a majority of the justices’ policy preferences. A narrow ruling could hand Alabama a victory, without limiting the Court’s discretion in future racial gerrymandering cases.

But, at the very least, Alabama seems unlikely to win a sweeping decision that explicitly eliminates voting rights protections that have existed for nearly 40 years.

Alabama wants to cut off racial gerrymandering suits before they even really begin

Under Gingles, plaintiffs alleging that a legislative map violates the Voting Rights Act must clear a long list of hurdles. First, a plaintiff claiming that a state must draw additional districts where a racial minority group can elect their preferred candidate must show that this group is “sufficiently large and geographically compact to constitute a majority” within an additional district.

Normally, voting rights plaintiffs accomplish this task by drawing one or more sample maps that include a sufficient number of majority-minority districts. So, for example, because the plaintiffs in Merrill allege that Alabama should have a second majority-Black congressional district, they needed to produce at least one sample map where Black people comprise a majority in two districts.

As Justice Kagan has explained, the purpose of making voting rights plaintiffs produce a sample map is to show “that what they are asking for is possible.” If it is not actually possible to draw congressional maps with two Black-majority districts in Alabama, then there is no point in litigating whether Alabama should have two Black-majority districts.

It’s also worth bearing in mind that, under Gingles, plaintiffs who produce a valid sample map do not necessarily win their case. Indeed, all they achieve is that they prevent their case from being tossed out at an early stage. Gingles still requires voting rights plaintiffs to prove other facts. They must prove, for example, that a state’s white voters tend to vote “as a bloc to enable it … usually to defeat the minority’s preferred candidate.”

And Gingles also requires judges to consider a myriad of factors, such as whether the state in question has a “history of official discrimination” or “whether political campaigns have been characterized by overt or subtle racial appeals,” before it can declare a map invalid. Again, the sole purpose of the sample map is to make plaintiffs show their proposed outcome is possible before many of the difficult questions raised by racial gerrymandering lawsuits are even litigated.

Nevertheless, Alabama’s LaCour urged the Court to impose new obligations on plaintiffs when they draw their sample maps, some of which could make it impossible for any plaintiff to challenge a racial gerrymander under the Voting Rights Act. One of his primary arguments, for example, is that these plaintiffs may not take too much account of race when they produce these sample maps — even though it is unclear how, exactly, a plaintiff is supposed to draw a sample map that includes two majority-Black districts if they aren’t allowed to consider race while doing so.

Even Alito appeared to think that the strongest version of this argument goes too far. He urged LaCour to focus on a more refined version of his argument — that the sample maps must feature “the type of district that would be drawn by an unbiased mapmaker.”

As many justices pointed out, however, this approach is at odds with the text of the Voting Rights Act, which says any state law that “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color” is illegal, even if that law is not motivated by racial bias. Indeed, Congress inserted this results-focused language into the statute in 1982 for the very purpose of overruling the Supreme Court’s decision in City of Mobile v. Bolden (1980), which held that Voting Rights Act plaintiffs must prove racist intent in order to prevail.

That said, Alito soon made clear he’s advocating for a rule that requires plaintiffs to produce sample maps that meet what are often described as “traditional redistricting criteria,” such as drawing compact districts or keeping “communities of interest” — groups of people who share a similar culture, economic interest, or livelihood — together in a single district.

But, as Kavanaugh pointed out, it’s far from clear that such a focus on traditional criteria would lead to the result Alito wants. The plaintiffs’ proposed districts, Kavanaugh noted, do not have a “bizarre” shape and appear to be “reasonably compact.”

All of which is a long way of saying that there probably aren’t five votes on the Supreme Court to impose impossible new obligations on plaintiffs alleging racial gerrymandering at the earliest stages of litigation. But that does not mean that Alabama is likely to lose its case.

Several of the Court’s Republican appointees seemed to be looking for a way to decide this case narrowly

The Court’s Republican-appointed majority is normally quite hostile to Voting Rights Act plaintiffs. And it’s worth noting that, after a lower court struck down Alabama’s maps, the Court voted 5-4 to reinstate those maps during the 2022 election. Tuesday’s hearing concerned whether the Court should permanently reinstate the maps.

Most of the justices did not explain why they voted to temporarily reinstate the maps for 2022, and Kavanaugh wrote a brief opinion at the time indicating that he voted in Alabama’s favor in part because he thought the lower court’s decision was ill-timed. Nevertheless, given that the Court has already voted in favor of these maps once, it seems unlikely to reverse course.

But it is far from clear how the Court will get to that result. Of the justices who spoke up on Tuesday, only Alito appeared enthusiastic about a decision that would significantly rework the Gingles framework (although Justice Clarence Thomas only spoke briefly at the beginning of the argument, and Justice Neil Gorsuch was silent).

The other three Republican appointees — Roberts, Kavanaugh, and Barrett — all asked questions that seemed to be looking for a way to rule in Alabama’s favor, but largely by relying on factual circumstances particular to this case.

Much of the argument, for example, focused on the fact that some of the plaintiffs’ expert witnesses ran computer simulations to draw maps, using criteria that accounted for some, but not all, of the traditional race-neutral factors often considered in redistricting. These simulations did not produce any maps with two or more Black-majority districts. (One of the plaintiffs’ briefs argues that these simulations are irrelevant, because the simulated maps did not account for some traditional redistricting criteria such as keeping communities of interest together.)

Again, Gingles does not require voting rights plaintiffs to produce a sample map using computer simulations. It merely requires them to produce a sample map using any method they choose. But Roberts asked three times whether the Court could consider these simulations among the “totality of the circumstances” that might support a ruling in Alabama’s favor. And Barrett zeroed in on the computer simulations as well.

Future voting rights plaintiffs could avoid this problem by simply not running computer simulations. But Roberts and Barrett, at the very least, may look to the simulations as a reason to rule against these particular plaintiffs.

Kavanaugh, meanwhile, asked questions of both sides about whether the plaintiffs’ proposed maps were sufficiently compact. Based solely on his questions Tuesday, it’s possible that Kavanaugh may ultimately vote with the Court’s three liberals to strike down Alabama’s maps — although four votes would not be enough for the Merrill plaintiffs to prevail.

Supreme Court reporter Mark Joseph Stern adds at Slate, Hear Ketanji Brown Jackson Use Progressive Originalism to Refute Alabama’s Attack on the Voting Rights Act:

For decades, conservative justices have made a specific point to support many of their rulings on race: They insist that the Constitution is entirely “colorblind,” prohibiting any consideration of race under all circumstances. During oral arguments in Merrill v. Milligan on Tuesday, a case they will attempt to use to eradicate what remains of the Voting Rights Act, they advanced this theory once again. This time, however, Justice Ketanji Brown Jackson refused to cede ground to their revisionist history. In a series of extraordinary exchanges with Alabama Solicitor General Edmund LaCour, Jackson explained that the entire point of the 13th, 14th, and 15th Amendments was to provide equal opportunity for formerly enslaved people, using color-conscious remedies whenever necessary to put them on the same plane as whites. It was a masterclass in progressive originalism that illustrated exactly why Jackson is such a crucial addition to this ultra-conservative court.

[A]labama’s argument is that the law—as interpreted by the lower court—violates the 14th Amendment’s equal protection clause. Even though Section 2 of the VRA compels states to ensure that the political process is “equally open to participation” by all races, which obviously requires the use of race to guarantee equality, the state is arguing that any consideration of race in redistricting violates residents’ constitutional rights—even if race is used to safeguard Black voters’ political power. The goal is to get the Court to say that the VRA cannot require the creation of districts in which racial minorities make up a majority, because such race-conscious line-drawing would infringe on equal protection.

Justice Sonia Sotomayor has contested this race-blind theory of equal protection in the past, but on Tuesday, she let the newest justice offer Alabama a history lesson. And Jackson was having none of it. “I don’t think we can assume that just because race is taken into account, that that necessarily creates an equal protection problem,” Jackson told the Alabama solicitor general. “I understood that we looked at the history and traditions of the constitution, at what the Framers and the Founders thought about. And when I drill down to that level of analysis, it became clear to me that the Framers themselves adopted the equal protection clause, the 14th, the 15th Amendment, in a race-conscious way. That we were, in fact, trying to ensure that people who had been discriminated against, the Freedman, during the Reconstruction period, were actually brought equal to everyone else in society.”

The justice then went deeper, citing the Report of the Joint Committee on Reconstruction from 1866, produced by the lawmakers who drafted the 14th Amendment. “That report says that the entire point of the amendment was to secure rights of the freed former slaves,” Jackson explained. She continued: “The legislator who introduced that amendment said that ‘unless the Constitution should restrain them, those states will all, I fear, keep up this discrimination and crush to death the hated Freedman.’ That’s not a race-neutral or race-blind idea in terms of the remedy.”

Jackson went on to note that one purpose of the 14th Amendment was to provide a constitutional foundation to the Civil Rights Act of 1866, which “specifically stated that citizens would have the same civil rights as enjoyed by white citizens. That’s the point of that act, to ensure that the other citizens, the Black citizens, would have the same as the white citizens.”

“With that background,” she told Alabama’s solicitor general, “I’m trying to understand your position [on] Section 2, which by its plain text is doing that same thing. It’s saying: You need to identify people in this community who have less opportunity and less ability to participate and ensure that that’s remedied. It’s a race-conscious effort, as you have indicated. I’m trying to understand why that violates the 14th amendment given the history and background of the 14th Amendment.”

Jackson is plainly correct: The Framers of the 14th Amendment (which guarantees equal protection) and 15th Amendment (which bars race-based voting discrimination) explicitly supported race-conscious remedies to civil rights violations. They intended the post-Civil War amendments to guarantee equal opportunity to Black citizens, combatting “deep rooted prejudice of the white race” against Black Americans to help them secure a “just and constitutional position.” As legal historians have persuasively explained, the Framers readily took race into account when necessary to redress past discrimination.

So much about Alabama’s Black communities today—their location within the region, their economic hardships, their struggles to exercise equal political power—is a result of past discrimination. Congress wanted the VRA to ensure that these communities could finally participate equally in the political process, through race-conscious redistricting if necessary. Alabama Republicans want the opposite; they seek to impose a devastating racial gerrymander—under the theory that protecting Black citizens’ voting power would violate the 14th Amendment’s equal protection clause.

This theory is as perverse as it is ahistorical. Jackson refused to let it go unrebutted. There’s little doubt that the conservative justices will still outvote her here, and in the upcoming affirmative action cases, where Republican lawyers are using an anti-originalist theory to abolish race-conscious admissions. It is distressing to see self-identified originalists mangle history to further their own policy goals. At least Jackson won’t let them do it without a fight.

To quote KBJ from earlier this week, “You go girl!”





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