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Supreme Court Rejects Alabama Voting Map That Diluted Black Voters’ Power

Jun 22, 2023


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Voting rights advocates had feared that the decision about redistricting in Alabama would further undermine the Voting Rights Act, which instead appeared to emerge unscathed.

By Adam Liptak

Reporting from Washington

The Supreme Court, in a surprise decision, ruled on Thursday that Alabama had diluted the power of Black voters in drawing a congressional voting map, reaffirming a landmark civil rights law that had been thought to be in peril.

Chief Justice John G. Roberts Jr., who has often voted to restrict voting rights and is generally skeptical of race-conscious decision making by the government, wrote the majority opinion in the 5-to-4 ruling, stunning election-law experts. In agreeing that race may play a role in redistricting, the chief justice was joined by Justice Brett M. Kavanaugh and the court's three liberal members, Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson.

Voting rights advocates had feared that the decision would further undermine the Voting Rights Act of 1965, a central legislative achievement of the civil rights movement whose reach the court's conservative majority has eroded in recent years. Instead, the law appeared to emerge unscathed from its latest encounter with the court.

The case concerned a voting map redrawn by Republican lawmakers after the 2020 census, leaving only one majority Black congressional district in a state with seven districts and a Black voting-age population that had grown to about 26 percent.

The impact of the decision, which required the Legislature to draw a second district in which Black voters have the opportunity to elect representatives of their choice, will not be limited to Alabama. Other states in the South, notably Louisiana and Georgia, may also have to redraw their maps to bolster Black voting power, which could, among other things, help Democrats in their efforts to retake the House.

The chief justice wrote that there were legitimate concerns that the law "may impermissibly elevate race in the allocation of political power within the states." He added: "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."

Justice Clarence Thomas filed a slashing dissent. The majority's approach, he wrote, "does not remedy or deter unconstitutional discrimination in districting in any way, shape or form."

"On the contrary," he added, "it requires it, hijacking the districting process to pursue a goal that has no legitimate claim under our constitutional system: the proportional allocation of political power on the basis of race."

In all, he wrote, the majority ruled "that race belongs in virtually every redistricting."

Justice Thomas's bitter tone suggested deep disappointment with Chief Justice Roberts and Justice Kavanaugh and profound regret over a missed opportunity. Justices Samuel A. Alito Jr., Neil M. Gorsuch and Amy Coney Barrett joined all or large parts of Justice Thomas's dissent.

In a concurring opinion, Justice Kavanaugh wrote that it was possible that "the authority to conduct race-based redistricting cannot extend indefinitely into the future."

Justice Thomas responded that his colleague had nonetheless voted "to sustain a system of institutionalized racial discrimination in districting — under the aegis of a statute that applies nationwide and has no expiration date — and thus to prolong the lasting harm to our society caused by the use of racial classifications in the allocation of political power."

The case was part of a pitched battle over redistricting playing out across the country. Civil rights leaders say the redistricting process often disadvantages growing minority communities. Republican state officials say the Constitution allows only a limited role for the consideration of race in drawing voting districts.

Attorney General Merrick B. Garland welcomed the ruling. "Today's decision rejects efforts to further erode fundamental voting rights protections, and preserves the principle that in the United States, all eligible voters must be able to exercise their constitutional right to vote free from discrimination based on their race," he said in a statement.

Steve Marshall, Alabama's attorney general, issued a brief statement. "Although the majority's decision is disappointing," he said, "this case is not over."

After Black voters and advocacy groups challenged Alabama's new map under the Voting Rights Act, a unanimous three-judge panel of the Federal District Court in Birmingham ruled that the Legislature should have fashioned a second district "in which Black voters either comprise a voting-age majority or something quite close to it."

The unsigned decision was joined by Judge Stanley Marcus, who ordinarily sits on the U.S. Court of Appeals for the 11th Circuit, in Atlanta, and who was appointed by President Bill Clinton; and by Judges Anna M. Manasco and Terry F. Moorer, both appointed by President Donald J. Trump.

The panel found that voting in the state was racially polarized and that it would be possible to draw "a second reasonably configured district" to allow Black voters to elect their favored candidates.

The court relied on Section 2 of the Voting Rights Act, which bars any voting procedure that "results in a denial or abridgment of the right of any citizen of the United States to vote on account of race." That happens, the provision goes on, when, "based on the totality of circumstances," racial minorities "have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice."

Chief Justice Roberts wrote that the lower court had gotten things right. "We see no reason to disturb the district court's careful factual findings," he wrote.

Justice Thomas wrote that under the lower court's approach, "Section 2 is nothing more than a racial entitlement to roughly proportional control of elective offices — limited only by feasibility — wherever different racial groups consistently prefer different candidates."

He added, "If that is what Section 2 means, the court should hold that it is unconstitutional."

Even as Justice Thomas portrayed the majority opinion as transformative, Chief Justice Roberts stressed that it merely maintained the status quo. "The heart of these cases is not about the law as it exists," he wrote. "It is about Alabama's attempt to remake our Section 2 jurisprudence anew."

Last year, the Supreme Court temporarily blocked the lower court's ruling by a 5-to-4 vote, ensuring that the 2022 election would take place using the Legislature's map, the one with a single district in which Black voters were in the majority.

Justice Kavanaugh voted with the majority at the time, saying the lower court had acted too close to the election. "I take no position at this time on the ultimate merits of the parties’ underlying legal dispute," he wrote.

Chief Justice Roberts dissented at the time, though he said that the court's precedents "have engendered considerable disagreement and uncertainty regarding the nature and contours of a vote dilution claim." That statement suggested that he was prepared to revisit those precedents. Instead, on Thursday, he let them stand.

Earlier Supreme Court decisions have curtailed other parts of the Voting Rights Act.

In 2013, in Shelby County v. Holder, the court effectively gutted Section 5 of the Voting Rights Act, which had required federal approval of changes to state and local voting laws in parts of the country with a history of racial discrimination. But that ruling assured the public that Section 2 of the law would remain in place to protect voting rights by allowing litigation after the fact.

In 2021, in Brnovich v. Democratic National Committee, the court cut back on Section 2 of the law, limiting the ability of minority groups to challenge voting restrictions.

Richard L. Hasen, a law professor at the University of California, Los Angeles, said Thursday's decision, Allen v. Milligan, No. 21-1086, must be understood against the backdrop of the Supreme Court's recent decisions on abortion and guns and a coming one that is likely to limit affirmative action in higher education.

"It would have been an earthquake for the court to have read Section 2 as the dissenters would have, severely curtailing minority voters’ representation in Congress, state houses and city halls," Professor Hasen said. "Roberts and Kavanaugh's joining with the liberals in preserving the status quo helps not only minority voters, but the court's fragile legitimacy in the face of these other rulings and ethics scandals."

Adam Liptak covers the Supreme Court and writes Sidebar, a column on legal developments. A graduate of Yale Law School, he practiced law for 14 years before joining The Times in 2002. @adamliptak • Facebook