The Supreme Court on Tuesday heard a challenge to a key section of the Voting Rights Act, presenting the conservative majority with another opportunity to whittle down the seminal 1965 law that aims to address racial discrimination in voting.
The case concerns the US congressional map Alabama drew after the 2020 census, but the questions the justices are now considering could redefine how the Voting Rights Act can be used to challenge redistricting plans in court.
Much of the two hours of oral arguments featured conservatives testing how broadly or narrowly they would need to rule to uphold Alabama’s map, which had been deemed by lower courts as likely discriminatory to Black voters. In a 5-4 decision, the Supreme Court had previously halted lower court orders requiring the map to be redrawn for the 2022 election.
The lawyers for the Black voters who challenged Alabama’s map, as well as US Solicitor General Elizabeth Prelogar, cautioned the court that even seemingly minor changes to how courts handle VRA cases would drastically complicate the path minority voters have for challenging discriminatory maps in court. That in turn could undermine the political power of voters of color, while shrinking minority representation in Congress and state legislatures.
Here are takeaways from Tuesday’s oral arguments in the case, titled Merrill v. Milligan:
Wobbly conservatives could come around to ruling for Alabama – at least narrowly
After its lawyer had a rocky start Tuesday, Alabama got some signs from the court that it could win the dispute, at least narrowly. And even a purportedly modest ruling in Alabama’s favor would have major impacts on how the Voting Rights Act can be used to challenge redistricting plans.
Chief Justice John Roberts and Justices Brett Kavanaugh and Amy Coney Barrett had questions for Alabama’s opponents that suggested they were not yet persuaded that the state’s requests in the case should be fully rejected.
The Supreme Court is being asked to reassess a test – known as the Gingles test, named after a 1986 precedent – that courts use to decide whether a legislative map violates the Voting Rights Act.
The first part of that test requires a map’s legal challengers to show a court that enough minority voters live in a place that a majority-minority district could be drawn, and in doing so, that district would be “reasonably configured.”
Alabama wants the Supreme Court to demand that challengers not use race when they draw the maps that prove that they can overcome that first hurdle of a VRA redistricting challenge.
Several conservative justices painted this particular request in the case as narrow, and characterized it as short of rewriting of court precedents around the VRA. But voting rights advocates say that even this more modest retooling of how VRA redistricting cases work would thoroughly diminish the ability of minority voters to bring those cases.
One friend-of-the-court brief said that adopting Alabama’s proposal would allow multiple states to wipe out several minority-opportunity districts in their statehouses. Abha Khanna, the lawyer for one set of challengers to Alabama’s maps, highlighted the logistical issues that would arise if challengers were forced to use complicated computer simulations, as Alabama was suggesting, to show they can meet the first prong of the Gingles test in a race neutral way.
Still, key swing votes on the court expressed sympathy to the idea.
Kagan called out conservative majority for its pattern of undermining the VRA
If the court rules in Alabama’s favor, it would mark the third time the Roberts Court punched holes in the landmark civil rights law. Justice Elena Kagan remarked on the pattern in one of the hearing’s more pointed moments.
“In recent years, the statute has fared not well in this court,” she said.
Kagan rattled through the two other cases in question, 2013’s Shelby County v. Holder and 2021’s case Brnovich v. DNC. The former case dismantled Section 5 of the VRA, which required certain states and localities to get federal approval for voting policy changes, including the redrawing of maps. In it, the conservatives stressed they were leaving in place Section 2, the part of the law that allows discriminatory voting laws to be challenged in court. But Brnovich whittled away the use of Section 2 in so-called vote denial cases – or those concerning rules for casting ballots – as the conservative majority emphasized Section 2’s use for redistricting cases, which are known as vote dilution claims.
“Now here we are … you know, the classic Section 2 dilution claim,” Kagan said to Alabama Solicitor General Edmund LaCour. “And you’re asking us, essentially, to cut back substantially on our 40 years of precedent and to make this too extremely difficult to prevail on. So what’s left?”
Alito bailed out Alabama’s lawyer as his more reaching arguments were unsuccessful
Alabama’s solicitor general had a rough go of it in the early rounds of Tuesday’s arguments, as the court’s liberal wing picked his apart. Justice Samuel Alito eventually threw him a lifeline by turning the focus of the oral arguments to Alabama’s claims about the first prong of the Gingles test.
“Let me make sure I understand your – your basic argument, your least far-reaching argument,” Alito said, as he teed up Alabama’s desire that VRA challengers be required to show, as part of that prong, that a majority-minority district could be drawn without looking at race.
Even after Alito told LaCour to pivot to the narrower version of his argument, other conservatives on the court made clear that they had no appetite for the others that would more drastically rework how the Voting Rights Act is understood.
“You’ve been talking a lot about the farther-reaching arguments,” Barrett told LaCour, as she indicated she still need more clarity on the “central argument” that Alabama is putting forward.
Jackson charts her own track, using originalists arguments to boost the VRA
Justice Ketanji Brown Jackson, the court’s newest addition and its only Black female member, showed Tuesday that she’ll be a cutting a unique path. This was particularly highlighted by a question she had for LaCour that used originalist arguments to bolster the Voting Rights Act.
Key to Alabama’s claims is that lower courts are interpreting the VRA in a way that is putting the law at odds with the Constitution’s prohibitions on racial discrimination.
“I don’t think we can assume that just because race is taken into account that that necessarily creates an equal protection problem,” Jackson said, pushing back on LaCour, “because 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 drilled down to that level of analysis, it became clear to me that the framers themselves adopted the equal protection clause, the Fourteenth Amendment, the Fifteenth Amendment, in a race conscious way. ”