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Offering commentary and analysis from Washington, Oregon, and Idaho, The Cascadia Advocate provides the Northwest Progressive Institute's uplifting perspective on world, national, and local politics.

Thursday, June 8th, 2023

U.S. Supreme Court refuses to weaken Voting Rights Act to sanction Alabama gerrymander

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.

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