Midterms highlight SCOTUS’ threat to Black voters

by Noah Feldman

At a time when control of the House of Representatives has come down to just a few seats, it’s a good time to reexamine the Voting Rights Act case pending before the Supreme Court. How the justices rule will have meaningful consequences for future House elections — especially close ones like this year’s. And most importantly, the court’s decision could reverse decades of progress on racial representation.

The case, Merrill v. Milligan, comes out of Alabama — precisely 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% 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, with six majority-white districts and one majority-Black district.

Civil rights groups nevertheless challenged the new districting map. Their basic argument can be stated simply: the Alabama map splits Black voters into three different majority-white districts and simultaneously packs Black voters into a single district. This combination, colloquially called “cracking and packing,” 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 with the civil rights groups and held that Alabama had violated the VRA. The case was an easy one. Two of the judges were Trump administration appointees; they both joined the court’s unanimous decision. The ruling explained clearly that Alabama could have easily drawn the districts so that two districts were majority-Black. The court conclude that Alabama 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. They would almost certainly have elected Democrats, resulting in a pickup of one House seat for the Democrats.

Instead, back in February of 2022, 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 to make it harder to prove a vote dilution claim. Justice Elena Kagan raised the alarm about it in her dissent. And Chief Justice John Roberts also dissented, explaining that the lower court had simply applied existing law.

There’s an important procedural question about whether the court should essentially decide major issues before it hears oral argument and issues a formal decision. But leave that aside, for now, and consider what happened when the justices did finally hear oral argument, in October.

Essentially, 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 — meaning one who did not pay attention to race — would actually have drawn.

On the surface this might not sound too radical. After all, 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. And plaintiffs will still have to show alternative maps because, of course, it is very hard to prove one set of maps is unfair without looking at how majority-Black districts could have been drawn.

Section 2 was designed to make sure that Black votes aren’t diluted, especially in states with a history of slavery and segregation. Reinterpreting Section 2 to be race-blind is a way of gutting it.

If the Supreme Court indeed changes the rules, it is possible that other states will be able to crack and pack minority voters without much fear of having their districts rejected. That might not transform the House map nationally — in most years. But, as in Alabama, it could cost Democrats dearly even on a one-district-at-a-time level. And in a close election, it could even be decisive.

Partisan gerrymandering is bad enough, but it doesn’t violate federal law. Racial gerrymandering is morally worse and is still, at least in principle, illegal. If the Supreme Court allows states to dilute minority voters with relative impunity, that will be more than a victory for Republicans. It will be a defeat for racial equality and for democracy.

Noah Feldman is a Bloomberg Opinion columnist and a professor of law at Harvard University.