Voting Rights Act dodges bullet at Supreme Court

The Supreme Court has passed up a chance to further narrow the scope of the Voting Rights Act, unexpectedly siding with Black voters in an Alabama redistricting case and rejecting a legal theory that would have made it harder for minority voters to challenge alleged racial gerrymanders.

In a surprising 5-4 decision on Thursday, the high court ruled that Alabama’s Republican-controlled Legislature likely violated the law by diluting the power of Black voters when it drew its congressional map after the 2020 census.

Alabama has seven congressional districts. One of them — the only one represented by a Democrat — contains a majority of Black voters, despite the fact that over a quarter of the state’s population is African American. Thursday’s decision will likely force the state to redraw its congressional map to add a second predominantly Black district.

And the ruling increases the odds that minority voters will prevail in other pending redistricting challenges in states like Georgia and Louisiana. The challenges could force those states, too, to draw additional districts where minority voters can elect their chosen candidates — a prospect that could lead to a handful of new Democratic seats in the U.S. House.

The decision featured an unusual ideological breakdown: Chief Justice John Roberts wrote the court’s majority opinion, joined by the court’s liberal bloc — Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson. Conservative Justice Brett Kavanaugh also joined most of Roberts’ opinion.

The court’s other conservatives — Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Amy Coney Barrett — dissented.

The decision Thursday came as a surprise in part because the Roberts court has repeatedly chipped away at the Voting Rights Act, the landmark law passed in the wake of civil rights demonstrations in the 1960s.

Most notably, Roberts himself wrote a landmark decision 10 years ago that neutered the requirement in the VRA that states and other jurisdictions with a history of discrimination in voting get changes to voting laws and even polling locations cleared in advance by either the Department of Justice or a federal court.

Later decisions also weakened the VRA — like a 2018 ruling that state legislators were entitled to a presumption of good faith, and a 2021 decision adopting five “guideposts” to assess voting rules that activists decried as a sweeping ruling that would make it significantly harder to challenge laws as discriminatory.

The Alabama case — Allen v. Milligan — revolved around a challenge to the state’s congressional map, which civil rights groups argued illegally diluted the power of Black voters in the state. Lower-court judges agreed and blocked the map from being used — an order that the Supreme Court temporarily put on hold while the justices heard Alabama’s appeal.

Alabama argued that legislators drew the map with “race neutral” principles by not looking at racial demographics when drawing the map. The state, in effect, argued that Section 2 of the Voting Rights Act — which prohibits voting practices and procedures that discriminate on the basis of race — should be read to require showing some sort of explicit discriminatory intent, as opposed to an outcomes-based test.

During oral arguments in October, a majority of the Supreme Court did not seem receptive to Alabama’s most extreme arguments even as the court's conservatives seemed open to narrowing the Voting Rights Act to some extent.

However, Roberts’ 34-page opinion Thursday declined to disturb long-standing precedents interpreting the VRA, as Alabama’s GOP-led government and many conservatives had urged. The state and its defenders suggested that requiring multiple majority-Black districts would impermissibly force the state to draw districts based on race. Roberts, who has often expressed skepticism about government actions focused on race, insisted those dangers were not paramount in this case.

“The concern that [Section 2] may impermissibly elevate race in the allocation of political power within the States is, of course, not new,” the chief justice wrote. “Our opinion today does not diminish or disregard these concerns. It simply holds that a faithful application of our precedents and a fair reading of the record before us do not bear them out here.”

Alabama officials took aim in particular at a 1986 Supreme Court ruling, Thornburg v. Gingles, that struck down a districting scheme in North Carolina that diluted Black voting power by allowing for legislative districts that elected multiple representatives, effectively drowning out the preferred political candidates of minority voters.

The state also argued that plaintiffs in Voting Rights Act cases shouldn’t be permitted to propose new maps drawn with racial demographics in mind. But Roberts flatly rejected that argument, saying that’s exactly what those groups are entitled to do.

“The contention that mapmakers must be entirely ‘blind’ to race has no footing" in the Supreme Court's precedents on Section 2 of the VRA, Roberts wrote.

Kavanaugh, who joined in last June’s blockbuster ruling overturning Roe v. Wade, expressed skepticism about Gingles but said the court should be reluctant to disturb long-standing precedents in cases that merely interpret laws rather than reach conclusions on what the Constitution requires.

“The stare decisis standard for this Court to overrule a statutory precedent, as distinct from a constitutional precedent, is comparatively strict,” Kavanaugh wrote in a solo concurrence Thursday. He said Congress has had more than 30 years to alter the Voting Rights Act if the court got it wrong.

Thomas, by contrast, opened his dissent by repeating an argument he has made in past cases: that Section 2 of the Voting Rights Act should not apply to redistricting challenges at all. “I have long been convinced that those words … do not include a State’s ... choice of one districting scheme over another.”

Thomas’ combative dissent, which is 10 pages longer than the majority opinion, is withering in its tone. He accused Roberts and the others in the majority of issuing a ruling that will “fossilize all of the worst aspects of our long-deplorable vote-dilution jurisprudence.”

Roberts’ opinion also wielded unusually pointed language to dismiss Thomas’ arguments as extreme.

“The dissent … goes where even Alabama does not dare,” Roberts wrote, arguing that Thomas’ approach would leave the Voting Rights Act with a “crabbed reach.”

Gorsuch signed on to Thomas’ dissent in its entirety, while Barrett and Alito did not sign on to that portion of Thomas’ dissent.

And Alito’s separately authored dissent, which was also joined in its entirety by Gorsuch, signaled that he would still welcome future opportunities to revisit the landmark law. “Today’s decision unnecessarily sets the VRA on a perilous and unfortunate path,” he wrote.

Kavanaugh did join with the dissenters on one point, declaring that “the authority to conduct race-based redistricting cannot extend indefinitely into the future.” Although Kavanaugh declined to address in this case just what that time limit might be, his search for a deadline could be a signal about a forthcoming Supreme Court decision on affirmative action in college admissions, where similar arguments have been leveled to call for an end to using race.

Thursday's ruling will no doubt become a key precedent for the other pending redistricting cases around the country in which voters allege discrimination. Those challenges have been held up pending the outcome of the Alabama decision.

The decision "lays a foundation for fair map decisions in our other Section 2 cases in states like Texas, Georgia, and Louisiana,” Marina Jenkins, the executive director of the National Redistricting Foundation — a Democratic Party-aligned group that backed the challenge to the Alabama map — said in a statement on Thursday.