Midterms highlight Supreme Court’s threat to black votes
The case, Merrill v. Milligan, is from Alabama—precisely the type of Deep South state Congress had in mind when it passed the VRA in 1965. Under Section 2 of the act, a state cannot not attract districts to intentionally dilute the power of black votes and thereby deprive racial minorities of an equal opportunity to elect the candidates of their choice.
After the 2020 census, the Republican-controlled Alabama Legislature drew new maps that slightly redistributed its seven House seats. Alabama is 27% black. Only one of the congressional districts is majority black.
Granted, the new districts drawn in 2021 aren’t dramatically different from those that existed between 2010 and 2020. During that time, six Alabama congressional districts were majority white and elected Republicans. One was majority black and elected a Democrat.
Civil rights groups nonetheless challenged the new district map. Their basic argument can be stated simply: the Alabama map divides black voters into three different white-majority districts and simultaneously lumps black voters into a single district. This combination, colloquially referred to as “cracking and packing,” ensures that black voters will only be able to elect one congressman in Alabama. Civil rights groups felt that Alabama could easily have created two reasonably compact congressional districts that would have been majority black.
A three-judge special federal district court agreed with civil rights groups and found Alabama violated the VRA. The deal was easy. Two of the judges were Trump administration appointees; they both joined the court’s unanimous decision. The ruling made it clear that Alabama could have easily drawn the districts so that two districts were majority black. Court finds Alabama illegally diluted black votes.
Normally, the result would have been for Alabama to have to redraw again, this time creating two majority black districts. They almost certainly would have elected Democrats, which would mean scooping up a House seat for Democrats.
Instead, in February 2022, the Supreme Court stepped in and, by a 5-4 vote, decided to prevent the district court order from taking effect. The nominal reason was that it was supposed to be too close to early voting for the midterm primaries to revise the districts. But the deeper reason was that the Conservative majority was signaling its intention to change the interpretation of Section 2 of the VRA to make it harder to prove an allegation of vote dilution. Judge Elena Kagan sounded the alarm about this in her dissent. And Chief Justice John Roberts also dissented, explaining that the lower court had simply applied the existing law.
There is an important procedural question as to whether the court should essentially decide important issues before hearing argument and rendering a formal decision. But put that aside, for now, and consider what happened when the judges finally heard the closing arguments in October.
Essentially, the court’s conservatives indicated that they wanted to require a plaintiff trying to show vote dilution to demonstrate not only that a state could have created more majority-minority districts, but also that those districts are what an “impartial” cartographer – that is, one who paid no attention to race – would have actually drawn.
On the surface, this may not seem too radical. After all, the precedent already requires that hypothetical constituencies be “reasonably” drawn. In practice, however, the new requirement that conservative justices are considering could allow lower court judges to dismiss clear evidence of vote dilution by saying that a plaintiff’s alternate districts were drawn based on the race. And plaintiffs will always have to show alternative maps because, of course, it’s very difficult to prove a set of maps is unfair without looking at how majority black districts might have been drawn.
Section 2 was designed to ensure that black votes are not diluted, especially in states with a history of slavery and segregation. Reinterpreting Section 2 to be race-blind is one way to eviscerate it.
If the Supreme Court does indeed change the rules, it’s possible other states will be able to crack and wow minority voters without too much fear of having their precincts thrown out. It might not transform the Chamber map nationally – most years. But, as in Alabama, it could cost Democrats dearly, even one district at a time. And in a close election, it could even be decisive.
Partisan gerrymandering is bad enough, but it does not violate federal law. Racial gerrymandering is morally worse and remains, at least in principle, illegal. If the Supreme Court allows states to dilute minority voters with relative impunity, it will be more than a victory for Republicans. It will be a defeat for racial equality and for democracy.
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This column does not necessarily reflect the opinion of the Editorial Board or of Bloomberg LP and its owners.
Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is the author, most recently, of “The Broken Constitution: Lincoln, Slavery and the Refounding of America”.
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