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Chief Justice Roberts and Justice Kavanaugh side with liberals in favor of Black voters in major Voting Rights Act ruling against Alabama Republicans

Chief Justice John Roberts (L) Justice Brett Kavanaugh (C) and Justice Ketanji Brown Jackson (L)

Chief Justice John Roberts, Justice Brett Kavanaugh, and Justice Ketanji Brown Jackson (Alex Wong/Getty Images)

A 5-4 U.S. Supreme Court on Thursday slapped down Alabama’s congressional redistricting map as “likely” violative of Section 2 of the Voting Rights Act of 1965, a ruling in favor of Black voters and against Republican lawmakers in the state.

Chief Justice John Roberts wrote the opinion in Allen v. Milligan, which Justice Brett Kavanaugh joined along with Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson. Justices Clarence Thomas, Neil Gorsuch, Amy Coney Barrett, and Samuel Alito dissented. Overall, the lineup was complicated:

ROBERTS, C. J., delivered the opinion of the Court, except as to Part III–B–1. SOTOMAYOR, KAGAN, and JACKSON, JJ., joined that opinion in full, and KAVANAUGH, J., joined except for Part III–B–1. KAVANAUGH, J., filed an opinion concurring in all but Part III–B–1. THOMAS, J., filed a dissenting opinion, in which GORSUCH, J., joined, in which BARRETT, J., joined as to Parts II and III, and in which ALITO, J., joined as to Parts II– A and II–B. ALITO, J., filed a dissenting opinion, in which GORSUCH, J., joined.

The core holding, on the other hand, was straightforward: “The Court affirms the District Court’s determination that plaintiffs demonstrated a reasonable likelihood of success on their claim that HB1 violates §2.”

What is HB1?

HB1 is a 2021 redistricting bill that faith groups, civil rights groups, and Black voters opposed for packing one-third of the state’s Black voters into a single congressional district while spreading the remaining Black voters across three congressional districts. Under Alabama’s revised maps, only one of the state’s seven congressional districts had a chance of electing a Black representative, despite the state having a roughly 27-percent Black population, the plaintiffs said. This gerrymandering, said the plaintiffs, violated the VRA, which prohibits election practices that result in voter discrimination based on race — regardless of intent.

More Law&Crime coverage: Liberal justices school Alabama on voting rights and racial discrimination in redistricting case

A three-judge panel on the Alabama federal district court (which included two judges appointed by former President Donald Trump) ruled unanimously to temporarily block the 2021 redistricting map in January 2022. In its ruling, the court cited Alabama’s long history of racial discrimination in the context of voting and said that the redistricting map likely violated Section 2 of the VRA. What the landmark civil rights law says:

(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 10303(f)(2) of this title, as provided in subsection (b).

(b) A violation of subsection (a) is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.

What the majority concluded

On Thursday, the Supreme Court’s razor-thin majority pointed directly to Alabama’s “extensive history” of racial and voting-related discrimination when agreeing with the lower court’s application of SCOTUS precedent:

[T]he District Court concluded that plaintiffs had carried their burden at the totality of circumstances stage. The Court observed that elections in Alabama were racially polarized; that “Black Alabamians enjoy virtually zero success in statewide elections”; that political campaigns in Alabama had been “characterized by overt or subtle racial appeals”; and that “Alabama’s extensive history of repugnant racial and voting-related discrimination is undeniable and well documented,” Id., at 1018–1024.

We see no reason to disturb the District Court’s careful factual findings, which are subject to clear error review and have gone unchallenged by Alabama in any event. See Cooper, 581 U. S., at 309. Nor is there a basis to upset the District Court’s legal conclusions. The Court faithfully applied our precedents and correctly determined that, under existing law, HB1 violated §2.

Justice Kavanaugh noted in his comparatively brief concurrence that the Supreme Court then and now has recognized that the “text of §2 establishes an effects test, not an intent test.”

“And the effects test, as applied by Gingles to redistricting, requires in certain circumstances that courts account for the race of voters so as to prevent the cracking or packing—whether intentional or not—of large and geographically compact minority populations,” Kavanaugh wrote.

The majority opinion noted that Randy Hinaman drew the congressional map in 2001 that informed the map drawn in 2011 — and that 2011 map was “[t]he starting point” for the 2021 map which the majority has repudiated.

“The resulting map Hinaman drew largely resembled the 2011 map, again producing only one district in which black voters constituted a majority of the voting age population,” the opinion said.

Now it’s back to the drawing board.

The dissents

Justice Clarence Thomas, joined in part by Justices Barrett and Alito, began his dissent directly.

“The question presented is whether §2 of the Act, as amended, requires the State of Alabama to intentionally redraw its longstanding congressional districts so that black voters can control a number of seats roughly proportional to the black share of the State’s population. Section 2 demands no such thing, and, if it did, the Constitution would not permit it,” the conservative justice wrote.

Later, Thomas backed the “race-neutral benchmark” proposed by Alabama, characterizing the district court and the majority’s interpretation of VRA §2 as “nothing more than a racial entitlement” that should be held “unconstitutional”:

The plaintiffs did not even prove that it is possible to achieve two majority-black districts without resorting to a racial gerrymander. The most that they can be said to have shown is that sophisticated mapmakers can proportionally allocate Alabama’s congressional districts based on race in a way that exceeds the Federal Judiciary’s ability to recognize as a racial gerrymander with the naked eye. The District Court held that this showing, plus racially polarized voting and its gestalt view of Alabama’s racial climate, was enough to require the State to redraw its districting plan on the basis of race. If that is the benchmark for vote dilution under §2, then §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.

If that is what §2 means, the Court should hold that it is unconstitutional. If that is not what it means, but §2 applies to districting, then the Court should hold that vote-dilution challenges require a race-neutral benchmark that bears no resemblance to unconstitutional racial registers. On the other hand, if the Court believes that finding a race-neutral benchmark is as impossible as much of its rhetoric suggests, it should hold that §2 cannot be applied to single-member districting plans for want of an “objective and workable standard for choosing a reasonable benchmark.”

Justice Alito, joined by Justice Gorsuch, dissented along similar lines.

“When the race of one group is the predominant factor in the creation of a district, that district goes beyond making the electoral process equally open to the members of the group in question. It gives the members of that group an advantage that §2 does not require and that the Constitution may forbid,” Alito wrote. “And because the creation of majority- minority districts is something of a zero-sum endeavor, giving an advantage to one minority group may disadvantage others.”

Alito then warned that the majority’s decision put the VRA on a “perilous and unfortunate path.”

“The Court’s treatment of Gingles is inconsistent with the text of §2, our precedents on racial predominance, and the fundamental principle that States are almost always prohibited from basing decisions on race. Today’s decision unnecessarily sets the VRA on a perilous and unfortunate path. I respectfully dissent,” Alito concluded.

Elura Nanos contributed to this report.

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Matt Naham is the Senior A.M. Editor of Law&Crime.