Supreme Court debates Alabama’s refusal of second Black voting district

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At the end of the nearly two-hour argument, it appeared a majority of the court might not embrace Alabama’s request for a broad reinterpretation of how the law is enforced, and that a narrower compromise was a possibility.

The state is challenging a unanimous decision by a three-judge panel that said it must create a second congressional district, out of seven, in which an African American candidate would have a good chance of being elected. Alabama’s electorate is 27 percent Black, and the charge is that most of those voters are packed into one district and the rest spread among others so that their voting power is diluted.

“What strikes me about this case is that under our precedent it’s kind of a slam dunk if you just take our existing precedent the way it is, and the three judges below all found this,” Kagan said. The three-judge panel was made up of one Democratic nominee and two judges nominated by President Donald Trump.

The Voting Rights Act is “one of the great achievements of American democracy to achieve equal political opportunities regardless of race, to ensure that African Americans could have as much political power as White Americans could,” Kagan said, before adding that the court in recent years has cut back on its protections. If Alabama is successful, she asked, “what’s left?”

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Alabama Solicitor General Edmund G. LaCour Jr. said the state redrew its congressional lines after the 2020 Census “in a lawful, race-neutral manner” that largely retained existing districts.

The law does not require Alabama “to replace its map with a racially gerrymandered plan maximizing the number of majority-minority districts,” LaCour said. It only “requires an electoral process equally open to all, not one that guarantees maximum political success for some over others.”

Jackson challenged LaCour’s assertion that neutrality on race was essential. Those who drafted the 14th Amendment’s guarantee of equal protection, she said, did so “in a race-conscious way.”

“They were, in fact, trying to ensure that people who had been discriminated against, the freedmen … were actually brought equal to everyone else in the society,” she said.

That question of constitutional colorblindness is one that could figure into the court’s deliberations later this month about affirmative action in university admissions.

Conservative Justices Samuel A. Alito Jr. and Amy Coney Barrett were sympathetic to LaCour, with Barrett saying the states are “being asked to navigate the rock and the hard place” of the Constitution’s command of equal protection and the Voting Rights Act’s assertion of minority rights.

Alito seemed to agree that challengers to a state’s redistricting maps should use only race-neutral means to show that the number of minority voters was large enough and compact enough to warrant election districts.

He seemed taken with Alabama’s assertion that a “computer simulation that takes into account all of the traditional districting standards would almost never, in a million simulations, it would never produce a second majority-minority district” in Alabama unless specifically told to take race into account.

But Deuel Ross, a lawyer for the NAACP Legal Defense and Educational Fund representing some of the challengers, said “there is nothing race-neutral about Alabama’s map.” The judicial panel that heard the case, he said, found that Alabama’s plan divides the state’s Black community “and allows White bloc voting to deny Black voters the opportunity to elect representation responsive to their needs.”

Once again, Alabama is the battleground over Black voting rights

The fight centers on what is called the state’s Black Belt, which is named for its fertile black soil but also is a swath in which many of the state’s Black voters live. The challengers’ maps would remove some of those voters from the district that now routinely elects a Black congresswoman and create a second district in which a Black candidate would have a much greater chance.

But LaCour said that could only happen by splitting the counties along the state’s Gulf Coast, which the state has said is a unified community of shared interest because of combined French and Spanish heritage.

Sotomayor was unimpressed. “Just so happens that all of those people are White. And you’ve never split those communities,” she said. “The Black Belt has all Black people or not all but mostly Black people” and it is always split in the state’s plans.

The case is the first for current Supreme Court justices to consider how to apply the Voting Rights Act to racial gerrymandering. In 2019, the court said federal courts had no role in policing partisan gerrymandering.

The judges in the Alabama case were applying Section 2 of the Voting Rights Act, which forbids practices that would mean racial minorities “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.”

To challenge a redistricting map, plaintiffs must show that there is a minority community large and compact enough to warrant a district. Then it must show racially polarized voting patterns. The panel of judges in the case at issue said it was not a “close call”: “Black voters have less opportunity than other Alabamians to elect candidates of their choice to Congress.”

But the Supreme Court on a 5-4 vote earlier this year put the panel’s ruling on hold, meaning the fall elections will take place under the plan drawn by the state’s Republican-led legislature.

U.S. Solicitor General Elizabeth B. Prelogar, representing the Biden administration, said the history of racial discrimination in Alabama is “severe” and its underrepresented Black voters are “sufficiently numerous and compact to form a majority in a reasonably configured district.”

Because the state can’t win under the law “as it’s been applied for the past 40 years,” it is asking the court to “radically change the law,” Prelogar said.

Requiring race neutrality at the outset of proving discrimination, she said, would mean “nothing would stop Alabama and many other states from dismantling their existing majority-minority districts, leaving Black voters and entire swaths of the country with no ability to elect their preferred representatives.”

While the argument was lively, it did not seem to foretell the ultimate resolution. Two of the conservative justices who seem likely to agree with Alabama, Clarence Thomas and Neil M. Gorsuch, asked either limited questions or, in Gorsuch’s case, none at all.

Chief Justice John G. Roberts Jr. has shown himself wary of classifying voters by race, and was in the majority in both of the cases Kagan cited as weakening the Voting Rights Act. But he was a dissenter when the court last spring put on hold the panel’s decision saying there should be two majority-minority districts. He said the judges had followed Supreme Court precedents and produced “an extensive opinion with no apparent errors for our correction.”

Justice Brett M. Kavanaugh said the answer to the case might be found in a narrower argument in Alabama’s briefs: “whether the newly drawn district alone is sufficiently compact or whether the minority population is so sprawling that any majority-minority district cannot be reasonably configured.”

Kavanaugh said he thought that was the right question, but Alabama had not supplied an answer. “Why do you think it’s so sprawling, given that it does respect a community of interest in the Black Belt, that it can’t be a new majority-minority district?” he asked.

LaCour said the challengers did not use traditional redistricting practices in their proposed maps, but Kavanaugh did not seem to agree.

Ross and attorney Abha Khanna, another lawyer for the challengers, said LaCour’s analysis was wrong. The maps submitted by the plaintiffs, Ross said, “look very similar to Alabama’s own Board of Education map and [they] increase opportunities for minority voters, while satisfying traditional and state redistricting criteria at least as well as Alabama’s map.”

The cases are Merrill v. Milligan and Merrill v. Caster.