U.S. Supreme Court associate justices Samuel Alito (L) and Elena Kagan testify about the court”s budget during a hearing of the House Appropriations Committee’s Financial Services and General Government Subcommittee, March 7, 2019, in Washington, DC (Chip Somodevilla/Getty Images).
The U.S. Supreme Court on Wednesday set the stage for a wave of racial gerrymandering across the country in a ruling that determined majority-minority congressional districts are unconstitutional.
In a 6-3 decision, the court’s Republican-appointed justices voted to gut the protections of Section 2 of the Voting Rights Act of 1965 (VRA) while formally leaving the law itself intact.
The opinion by Justice Samuel Alito specifically voided a Louisiana congressional map that created two Black-majority districts. The decision shores up the legacy of the Roberts court as particularly antagonistic toward the landmark law of the Civil Rights Movement.
Writing in dissent, Justice Elena Kagan used an “admittedly stylized” example of a hypothetical redistricting case to accuse the majority of enshrining “racial vote dilution in its most classic form.”
The dissent – joined by Justices Sonia Sotomayor and Ketanji Brown Jackson – describes a state where the Black population almost entirely lives in a circle-shaped, geographically-concentrated area and “heavily” votes for Democrats. In Kagan’s example, this area is a lone county and makes up one congressional district.
In contrast, the example state’s white population is more dispersed throughout the state and has five congressional districts represented by Republicans, in line with the voting intentions of its almost uniformly white residents, Kagan explains.
Kagan also explains how this hypothetical state has “a long history of virulent racial discrimination, and its many effects, including in residential segregation and political division, remain significant.”
The rub here is that the example is not really hypothetical at all.
“The circle district thus enables the State’s Black community to elect a representative of its choice, whom no neighboring community would put in office,” the dissent explains. “But that arrangement, in this not-so-hypothetical, is not to last. The state legislature decides to eliminate the circle district, slicing it into six pie pieces and allocating one each to six new, still solidly White congressional districts. The State’s Black voters are now widely dispersed, and (unlike the State’s White voters) lack any ability to elect a representative of their choice.”
Therefore, the dissent says, following what Kagan terms a “redistricting scheme,” the Black voters in the unnamed state have their votes “by every practical measure, wasted.” This is because they cannot vote as a geographically concentrated “community” to obtain their preferred political representation, despite actually living in a geographically concentrated community.
“That is racial vote dilution in its most classic form,” the dissent goes on – before employing a term native to redistricting/gerrymandering jurisprudence and scholarship. “A minority community that is cohesive in its geography and politics alike, and that faces continued adversity from racial division, is split—’cracked’ is the usual term—so that it loses all its electoral influence.”
Kagan explains the real-world upshot, at length:
Members of the racial minority can still go to the polls and cast a ballot. But given the State’s racially polarized voting, they cannot hope — in the way the State’s White citizens can — to elect a person whom they think will well represent their interests. Their votes matter less than others’ do; they translate into less political voice. Or, as this Court put it recently, the cracking makes “a minority vote unequal to a vote by a nonminority voter.”
Until this week, the process of “cracking” minority-majority districts to dilute their voting power was illegal under Section 2 of the VRA.
Kagan recites the history of the statute in practice – how the nation’s high court originally required a showing of discriminatory intent to trigger Section 2 protection against “cracking” minority voting power. And in response, how Congress “amended the law so that it turned solely on discriminatory effects.”
And for 40 years, that was how the country understood the law.
The literal language of successive court challenges and congressional rewrites enshrined Section 2 to support the notion that members of historically discriminated-against racial groups must be given the “opportunity” to “participate in the political process and to elect representatives of their choice,” or, in other words, often used, the “ability to elect their preferred candidates.”
Otherwise, Section 2 of the VRA stood waiting to invalidate any proposed map “cracking” such power if those challenging the gerrymander could show by a “totality of circumstances” an electoral system “not equally open” to those aforementioned racial groups.
But with the Roberts court, things have changed.
The majority insists it is not overturning Section 2, but rather, providing an “update” so that the framework employed by the justices to litigate the law “aligns with the statutory text” and “vast social change” that “has occurred throughout the country and particularly in the South, where many §2 suits arise.”
To hear the majority tell it, the march of history over the past 40 years means plaintiffs challenging a map under Section 2 simply “cannot use race as a districting criterion.”
To that end, the court found Louisiana’s map with two Black-majority districts to be “an unconstitutional gerrymander” and ruled that “its use would violate the plaintiffs’ constitutional rights.”
Kagan takes Alito to task for his choice of language.
Again, the dissent at length:
Under the Court’s new view of Section 2, a State can, without legal consequence, systematically dilute minority citizens’ voting power. Of course, the majority does not announce today’s holding that way. Its opinion is understated, even antiseptic. The majority claims only to be “updat[ing]” our Section 2 law, as though through a few technical tweaks. But in fact, those “updates” eviscerate the law, so that it will not remedy even the classic example of vote dilution given above.
What remains of Section 2 is now a general aversion to racial considerations in the drawing of congressional districts.
Kagan says this will largely be to the detriment of minority voters.
“[A] plaintiff will have to show—contrary to Section 2’s clear text and design—that the legislators were ‘motivated by a discriminatory purpose,'” the dissent continues. “And that, as Section 2’s drafters knew, is well-nigh impossible…The new Callais requirements will effectively insulate any practice, including any districting scheme, said by a State to have any race-neutral justification….Assuming the State has left behind no smoking-gun evidence of a race-based motive (an almost fanciful prospect), Section 2 will play no role.”
