Supreme Court Vague Over Whether To Cut Voting Rights Act — But Ketanji Brown Jackson Made It Clear She Was Opposed

Topline

The conservative-leaning Supreme Court gave few clues Tuesday whether they would soon deal a blow to the Voting Rights Act and its protections against racially discriminatory congressional maps, as justices heard oral arguments on Alabama’s voting map —though new Justice Ketanji Brown Jackson came out strongly against that possibility in her second day on the bench.

Key Facts

The Supreme Court heard arguments Tuesday in two cases, Merrill v. Milligan and Merrill v. Caster, that concern the constitutionality of Alabama’s redrawn congressional map, which only has one majority-Black district and was struck down by a lower court as being racially discriminatory, prompting the state to ask the Supreme Court to uphold it.

The court will determine whether the map drawn by the state’s Republican politicians violates section two of the Voting Rights Act, which prohibits voting practices that are racially discriminatory—meaning a ruling that says the map doesn’t violate the law could pave the way for other states to legally enact maps or voting practices that could be considered discriminatory.

Justice Ketanji Brown Jackson, who just joined the court this term, sharply criticized Alabama Solicitor General Edmund LaCour, who claimed the state’s initial map was “race neutral” and thus not discriminatory, saying his premise was false and that race has “already infused the voting system” due to issues like segregation in housing.

Jackson challenged the state’s claim that an alternate map favored by the challengers, which has two majority-Black districts, would violate the Fourteenth Amendment’s equal protection rights by relying too heavily on race, saying she’s “trying to understand [Alabama’s] position” when it doesn’t appear to be rooted in the actual constitutional amendment and its history.

Liberal-leaning Justices Elena Kagan and Sonia Sotomayor also harshly opposed Alabama’s position that its initial maps weren’t discriminatory, with Kagan saying the case is “kind of a slam dunk” that the map violates the Voting Rights Act and the state is “asking us to cut back substantially on our 40 years of precedent.”

Conservative Justice Samuel Alito took a more sympathetic position toward Alabama’s position, while Chief Justice John Roberts and Justices Brett Kavanaugh and Amy Coney Barrett—considered “swing votes” on the ruling—primarily asked technical questions that did not clearly articulate how they could rule, and Justice Neil Gorsuch did not ask any questions of either side.

Big Number

27%. That’s the share of Alabama’s population that’s made up of Black residents, according to the state government, though the state-drawn voting map would result in only one of seven congressional districts (covering 14% of the population) being made up of primarily Black voters.

What To Watch For

The Supreme Court will rule in the coming months on the case. The court previously ruled in February that Alabama should use the map the Republican legislature drew—the one with only one majority-Black district—while it considers the case, which means that one will be in place for the midterm elections. While the court gave little signal Tuesday on how it will rule, a majority of justices ruled in February to freeze the state’s new court-ordered voting map that had two majority-Black congressional districts, which signaled they likely believed at the time Alabama would prevail in the case. That means multiple justices’ views would have to flip for the map to be struck down. Justices will also consider a second redistricting-related case, which concerns the constitutionality of North Carolina’s maps and could have much broader impacts on states’ power to run elections, later this term.

Key Background

Alabama asked the Supreme Court to weigh in on the constitutionality of its congressional map in January after a three-judge panel in a lower court—including two appointed by former President Donald Trump—struck down the state’s congressional map as likely discriminatory and ordered a map be drawn that had two majority-Black districts. Plaintiffs who sued to block the state-drawn congressional map argued that it diluted Black residents’ votes by spreading voters out into multiple districts where they would remain the minority. The Alabama dispute is one of many redistricting battles that have played out as states redrew their maps to reflect the 2020 census, including legal tussles in such states as Florida, Georgia and Louisiana, where the Supreme Court similarly stepped in to let the state use a map that a lower court found was discriminatory. Voting rights advocates have feared the potential effects of the Supreme Court weighing in on section two of the Voting Rights Act, given the court’s 6-3 majority and that it already dismantled a different part of the law in 2013. That ruling nixed a provision that required states to get preclearance from the federal government before changing voting laws, and rulings in 2018 and last year that further chipped away at the Voting Rights Act.

Further Reading

The Supreme Court has chipped away at the Voting Rights Act for 9 years. This case could be the next blow. (Politico)

The Supreme Court Is On The Verge Of Killing The Voting Rights Act (FiveThirtyEight)

Supreme Court Leaves In Place Alabama Congressional Map Tossed Out By Lower Court Due To Racial Imbalance (Forbes)

The landmark Voting Rights Act faces further dismantling at the Supreme Court (NPR)