Supreme Court v. Black voters
As control of the House of Representatives came down to a few seats, it’s a good time to re-examine the Voting Rights Act case pending before the Supreme Court. How the justices rule will have consequences for future House elections.
The case, Merrill v. Milligan, comes from Alabama, the kind of Deep South state that Congress had in mind when it passed the VRA in 1965. Under Section 2 of the law, a state can’t draw districts to intentionally dilute the power of Black votes and thus deny racial minorities an equal opportunity to elect candidates of their choice.
After the 2020 census, the Republican-controlled Alabama legislature drew new maps that slightly redistricted its seven House seats. Alabama is 27 percent Black. Only one of the Congressional districts is majority Black.
The new districts drawn in 2021 aren’t radically different than those that existed between 2010 and 2020. During that period, six Alabama congressional districts were majority-white and elected Republicans to office. One was majority-Black and elected a Democrat.
Civil rights groups nevertheless challenged the new map. Their argument: the Alabama map splits Black voters into three different majority-white districts and packs Black voters into a single district. This combination ensures that Black voters will only be able to elect a single congressman in Alabama. The civil rights groups reasoned that Alabama could easily have created two reasonably compact congressional districts that would have been majority-Black.
A special three-judge federal district court agreed and held that Alabama had violated the VRA and had illegally diluted Black votes.
Ordinarily, the result would have been for Alabama to have to redistrict again, this time creating two majority-Black districts. In February, the Supreme Court intervened, and by a 5-4 vote decided to block the district court’s order from going into effect. The nominal reason was that it was supposedly too close to early voting for midterm primaries to revise any districts. But the deeper reason was that the conservative majority was signaling its intention to change the interpretation of Section 2 of the VRA.
The court’s conservatives indicated that they want 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 such districts are what “an unbiased” mapmaker would actually have drawn.
This might not sound too radical. Precedent already requires that hypothetical districts be “reasonably” drawn. In practice, however, the new requirement the conservative justices are contemplating could allow lower-court judges to reject clear proof of vote dilution by saying that a plaintiff’s alternative districts were drawn on the basis of race.
Section 2 was designed to make sure that Black votes aren’t diluted. Reinterpreting Section 2 to be race-blind is a way of gutting it.
If the Supreme Court changes the rules, it is possible that other states will be able do the same without much fear of having their districts rejected. That might not transform the House map nationally. But, as in Alabama, it could cost Democrats dearly.