Voting rights litigation may become a contradiction in terms

The scope and strength of the Voting Rights Act, 52 U.S.C. § 10101, et seq., is again at issue this Supreme Court term. And with the newly elected Republican House majority, there is a diminishing likelihood that Congress will strengthen voting protections.

On Oct. 4, the United States Supreme Court heard oral arguments in Merrill v. Milligan, involving the state of Alabama's recently redrawn congressional maps. Following the 2020 Census, Alabama chose a map in which the population of one of its seven House districts was majority Black. Several groups sued the state of Alabama under Section 2 of the Voting Rights Act, arguing that in a state that is about 27% African American, there should be two majority-Black districts.

The plaintiffs challenging Alabama's map argued the state "cracked" the concentrated Black population in the southern half of the state into several districts, thus "diluting" the preferences of Black voters. The trial court (comprised of a three federal judge panel, including two Trump appointees) agreed with the plaintiffs. Justice Elena Kagan described the case at oral argument as a "slam dunk" under existing federal precedent, highlighting that the appeal was meant to invite new precedent for Section 2 cases from the Court's new conservative super majority.

Merrill presents an opportunity for the Court to further limit federal anti-discrimination protections in voting. In the last decade, the Court has gutted Section 5 of the VRA in Shelby County, Ala. v. Holder, 570 U.S. 529 (2013); held laws in Arizona limiting ballot collection and rejecting out-of-precinct ballots permissible under Section 2 of the VRA in Brnovich v. Democratic National Committee, 141 S. Ct. 2321 (2021); and held that challenges to district maps that discriminate on the basis of party affiliation are not justiciable under the United States Constitution in Rucho v. Common Cause, 139 S. Ct. 2484 (2019).

The Court is poised to now also make it more difficult for plaintiffs to prove vote dilution. In 1986, the Court in Thornburg v. Gingles set forth "preconditions" for establishing that there has been actionable vote dilution in a jurisdiction. First, "the minority group must be able to demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single-member district." 478 U.S. 30, 50 (1986). Second, "the minority group must be able to show that it is politically cohesive." Id. at 51. Third, "the minority [group] must be able to demonstrate that the white majority votes sufficiently as a bloc to enable it ... usually to defeat the minority[ group's] preferred candidate." Id.

The state of Alabama argues that in meeting their burden on Gingles step one (showing that a plausible majority-minority district exists), plaintiffs should be prohibited from considering race in drawing their illustrative district plans.

Alabama is attempting to capitalize on the view that the Fourteenth Amendment's Equal Protection Clause demands "colorblindness." Alabama may have a receptive audience in the Court's conservative wing. Perhaps the most famous formulation of the colorblind principle is Chief Justice Roberts' pronouncement that "[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race." Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1., 551 U.S. 701, 748 (2007).

Yet Alabama's argument that illustrative maps submitted to satisfy Gingles step one must be drawn without taking race into account immediately runs into logical hurdles. First among those hurdles is that Gingles step one specifically requires plaintiffs to show that it is possible to draw a compact majority-minority district. See Gingles, 478 U.S. at 50. This is necessarily, and properly, race conscious. The Gingles test is designed to determine whether there is a racial harm flowing from the challenged policy. A rule prohibiting plaintiffs from considering race in developing their illustrative maps would put Gingles step one at odds with itself and place voting rights plaintiffs in an artificial double-bind.

At oral argument some justices suggested using computer simulations to generate possible maps and then determine if the results satisfied Gingles 1. (Ironically, the conservative majority rejected as unmanageable an analogous approach to partisan gerrymandering claims in Rucho. See 139 S. Ct. at 2505-06.) Requiring the use of computer simulations would plunge courts into thorny and highly technical litigation, with no apparent benefit to the fact-finding process under Gingles. For example, of the thousands of simulated maps, how many would need to show a majority-minority district to satisfy Gingles 1? How should a court evaluate judgment calls made by the expert regarding the weight assigned to competing variables, or the identification of communities of interest? Simulations are not a panacea - nor are they even necessarily race neutral.

Another problem is that Alabama's argument seeks to shift the analysis from outcomes (is a more equitable map possible?) to intent (what was the map-drawer thinking about?). Yet Congress decisively rejected an intent requirement and made clear that liability under the Voting Rights Act turns on the effects of the challenged voting procedure. See Gingles, 478 U.S. at 36.

The most powerful critique of Alabama's position was voiced by Justice Ketanji Brown Jackson, arguing that in light of the history of the Fourteenth Amendment, it's improper "to assume that just because race is taken into account that that necessarily creates an equal protection problem." Citing various elements of the historical record, she observed that there is no evidence that the framers of the Fourteenth Amendment "believed that race neutrality or race blindness was required." Rather, they were seeking to provide a constitutional foundation for legislation designed to "ensure that people who had been discriminated against ... were actually brought equal to everyone else in the society."

The majority on the Court appeared ready to rule for Alabama, though it was unclear what theory they will adopt. It is clear, though, that the Voting Rights Act, a core piece of civil rights legislation and a crucial tool for protecting a free and representative democracy, is at risk of losing much of its remaining force.