In one of the most pleas­ant­ly shock­ing deci­sions of the Roberts/Alito era, the Unit­ed States Supreme Court today ruled that Alaba­ma’s cur­rent con­gres­sion­al map like­ly vio­lates the Unit­ed States Vot­ing Rights Act by dilut­ing the votes of the state’s Black res­i­dents through ger­ry­man­der­ing. Only last year, the Court had giv­en Alaba­ma the okay to use the map after a low­er court found it in vio­la­tion of the VRA. Today, the Court some­what reversed itself, with right wing Jus­tices John Roberts and Brett Kavanaugh join­ing its three lib­er­als to find for the plaintiffs.

The deci­sion, a big blow to the right wing, means that Alaba­ma Repub­li­cans’ gam­ble that the Court would accept its invi­ta­tion to fur­ther weak­en the Vot­ing Rights Act has failed. While Jus­tices Ali­to, Thomas, Gor­such, and Coney Bar­rett want­ed to go along with Alaba­ma, Roberts and Kavanaugh were not interested.

As a con­se­quence, it looks like Alaba­ma, one of the most Repub­li­can-dom­i­nat­ed states in the coun­try, might soon be forced to redraw its con­gres­sion­al map.

“The deci­sion came as some­what of a sur­prise after the oral argu­ment in Octo­ber, at which the court’s con­ser­v­a­tive jus­tices seemed like­ly to set aside the low­er court’s rul­ing,” not­ed Amy Howe, a respect­ed Supreme Court observ­er. “But it was a wel­come sur­prise for the chal­lengers and their supporters.”

“This deci­sion is a cru­cial win against the con­tin­ued onslaught of attacks on vot­ing rights,” said a vic­to­ri­ous Deuel Ross of the Legal Defense Fund.

Ross is coun­sel for the plain­tiffs and argued the case before the Court.

“Alaba­ma attempt­ed to rewrite fed­er­al law by say­ing race could not be con­sid­ered in the redis­trict­ing process even when nec­es­sary to rem­e­dy racial discrimination.”

“But because of the state’s sor­did and well-doc­u­ment­ed pat­tern of per­sist­ing racial dis­crim­i­na­tion, race must be con­sid­ered to ensure com­mu­ni­ties of col­or are not boxed out of the elec­toral process. While the Vot­ing Rights Act and oth­er key pro­tec­tions against dis­crim­i­na­to­ry vot­ing laws have been weak­ened in recent years and states con­tin­ue to pass pro­vi­sions to dis­en­fran­chise Black vot­ers, today’s deci­sion is a recog­ni­tion of Sec­tion 2′s pur­pose to pre­vent vot­ing dis­crim­i­na­tion and the very basic right to a fair shot,” Ross explained.

“The heart of these cas­es is not about the law as it exists. It is about Alabama’s attempt to remake our [Vot­ing Rights Act Sec­tion] §2 jurispru­dence anew,” wrote right wing Chief Jus­tice Roberts in the major­i­ty opin­ion, also signed by Jus­tices Ele­na Kagan, Sonia Sotomay­or, and Ketan­ji Brown Jackson.

“The cen­ter­piece of the State’s effort is what it calls the ‘race-neu­tral bench­mark,’ ” Roberts elab­o­rat­ed. “The the­o­ry behind it is this: Using mod­ern com­put­er tech­nol­o­gy, map­mak­ers can now gen­er­ate mil­lions of pos­si­ble dis­trict­ing maps for a giv­en State. The maps can be designed to com­ply with tra­di­tion­al dis­trict­ing cri­te­ria but to not con­sid­er race. The map­mak­er can deter­mine how many major­i­ty-minor­i­ty dis­tricts exist in each map, and can then cal­cu­late the medi­an or aver­age num­ber of major­i­ty-minor­i­ty dis­tricts in the entire mul­ti­mil­lion-map set.”

“That num­ber is called the race-neu­tral benchmark.”

“Although we are con­tent to reject Alabama’s invi­ta­tion to change exist­ing law on the ground that the State mis­un­der­stands §2 and our deci­sions imple­ment­ing it, we also address how the race-neu­tral bench­mark would oper­ate in prac­tice. Alabama’s approach fares poor­ly on that score, which fur­ther coun­sels against our adopt­ing it,” Roberts added after offer­ing a lengthy repu­di­a­tion of its arguments.

One of the more inter­est­ing pas­sages in Roberts’ opin­ion recounts the his­to­ry of City of Mobile v. Bold­en, a major VRA-relat­ed case from the 1970s.

That was a case in which the Court held “that dis­pro­por­tion­ate effects alone, absent pur­pose­ful dis­crim­i­na­tion, are insuf­fi­cient to estab­lish a claim of racial dis­crim­i­na­tion affect­ing vot­ing,” as sum­ma­rized by Wikipedia.

Not­ed Roberts:

Almost imme­di­ate­ly after it was decid­ed, Mobile “pro­duced an avalanche of crit­i­cism, both in the media and with­in the civ­il rights com­mu­ni­ty.” T. Boyd & S. Mark­man, The 1982 Amend­ments to the Vot­ing Rights Act: A Leg­isla­tive His­to­ry, 40 Wash. & Lee L. Rev. 1347, 1355 (1983) (Boyd & Mark­man). The New York Times wrote that the deci­sion rep­re­sent­ed “the biggest step back­wards in civ­il rights to come from the Nixon Court.” N. Y. Times, Apr. 23, 1980, p. A22.

And the Wash­ing­ton Post described Mobile as a “major defeat for blacks and oth­er minori­ties fight­ing elec­toral schemes that exclude them from office.” Wash­ing­ton Post, Apr. 23, 1980, p. A5.

By focus­ing on dis­crim­i­na­to­ry intent and ignor­ing dis­parate effect, crit­ics argued, the Court had abro­gat­ed “the stan­dard used by the courts to deter­mine whether [racial] dis­crim­i­na­tion exist­ed … : Whether such dis­crim­i­na­tion exist­ed.” It’s Results That Count, Philadel­phia Inquir­er, Mar. 3, 1982, p. 8–A.

A sim­i­lar “avalanche of crit­i­cism” fol­lowed the Roberts Court’s deci­sion in Shel­by Coun­ty, although Roberts con­ve­nient­ly neglect­ed to men­tion that in his opin­ion. Still, as the old say­ing goes, even a bro­ken clock can be right twice a day. It was going to take the defec­tions of two right wing jus­tices for the state to lose this case. Some­how, that hap­pened, which is a real­ly good thing for Alaba­ma, the Vot­ing Rights Act, and the coun­try. Kudos to the plain­tiffs for their per­sis­tence and thought­ful legal rep­re­sen­ta­tion. They’ve won an impor­tant vic­to­ry here.