U.S. Supreme Court Police direct visitors from behind security barriers in front of the court building in Washington, D.C., on the first day of the court’s new term on Oct. 6.
Claire Harbage/NPR
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Claire Harbage/NPR
In 1965, President Lyndon Johnson signed the landmark Voting Rights Act, declaring that “today is a triumph for freedom as huge as any victory that has ever been won on any battlefield.”
But over the last 12 years, the increasingly conservative Supreme Court has hollowed out that law, leaving only one major provision standing. Now that provision is in danger of being struck down, too.
Section 2 of the Voting Rights Act aims to ensure that minority voters are not shut out of the process of drawing new congressional districts.
When the law was passed in 1965, there were just six African American, four Hispanic and two Asian or Pacific Islander members of the House of Representatives. None of the identified representatives were from the Deep South.
This Congress started out with 63 African American, 51 Hispanic and 21 Asian or Pacific-Islander representatives or delegates in the House.
Much of that change has been driven by the rules of the road under the Voting Rights Act.
All of that could change, however, if the court removes the guardrails to redistricting that it endorsed just two years ago. Indeed, if the Supreme Court either nullifies Section 2 of the Voting Rights Act or makes it much more difficult to enforce, recent studies indicate that Democrats could lose as many as 19 congressional seats in the process, putting control of the House effectively out of reach for the foreseeable future.
Specifically at issue in Wednesday’s case is a 5-to-4 Supreme Court ruling from just 28 months ago, which upheld the Voting Rights Act’s framework for drawing new congressional district lines every 10 years.
That case was from Alabama, where the state had refused to create a second majority African American district until ordered to do so by the court.
Wednesday’s case is from Louisiana and has a nearly identical fact pattern. African Americans comprise roughly 30% of Louisiana’s voting population, but, of the state’s six congressional districts, there is only one where they can, and do, routinely prevail in electing a candidate of their choosing.
For years, the state legislature fought creating a second district where minority voters could win. But after the Supreme Court’s decision in the Alabama case, the Louisiana legislature saw the legal handwriting on the wall and drew a new map that created a second district in which African American voters would have a realistic chance of electing the candidate of their choice.
Normally, that would have been the end of the case.
District like “a snake”
But a group of 12 self-described “non-African-American voters” intervened to challenge the redistricting as racially discriminatory. And at the arguments last March, some of the conservative justices seemed to be having an attack of buyer’s remorse.
Chief Justice John Roberts just over two years ago wrote the court’s majority decision upholding the redistricting provision of the Voting Rights Act. But when the Louisiana redistricting case was argued last March, he sounded more than a little doubtful.
“You think the drawing of this district was not predominantly based on race?” asked the incredulous Roberts. “It’s a snake that runs from one end of the state to the other!”
Louisiana’s Solicitor General Benjamin Aguiñaga replied that the Supreme Court has long said that partisan gerrymandering is permissible, but racial gerrymandering is not. And here, he said, the motivation was explicitly partisan. The lines, he said, were drawn to create a second minority district and to protect three key Republican incumbents in the House, including Speaker of the House Mike Johnson.
Pressed further, a frustrated Aguiñaga replied: “It’s an election year. We’re talking about the speaker of the House. No rational state gambles with those high stakes in that situation.”
Request for reargument
Amazingly, however, the justices did not decide the case then. Instead, on the last day of the term, they ordered reargument in the case. Only this time they added this question: Does the state’s intentional creation of a second majority-minority congressional district violate the Constitution’s 14th and 15th Amendments’ guarantee of the right to vote, and the authority of Congress to enforce that mandate?
To answer that question, Louisiana has now flipped positions and instead of defending the map its legislatures drew, it is arguing that the redistricting provision of the Voting Rights Act is unconstitutionally discriminatory.
“The jurisprudence keeps whipsawing us back and forth,” said Louisiana Attorney General Elizabeth Murrill. She maintains that the court’s Alabama decision “essentially boils down to, well, if you’re engaging in remedial map drawing, you have to think about race, but you can’t think about it too much. That is an impossible guideline.”
But Janai Nelson of the NAACP Legal Defense Fund will try to convince the justices that now is not the time to bail on the last truly effective provision of the Voting Rights Act.
If Section 2 is overturned, Nelson argued, “it would be utterly devastating. It would allow for racial gerrymandering to happen with very few checks. But to be honest, as horrific, and utterly undemocratic as that result would be, more concerning is what it would mean in terms of this court’s fidelity to what it once called the crown jewel of the civil rights movement.”
Just why the court ordered reargument in the case is unclear. There are a number of theories.
First, and most obvious, is that the fifth and decisive vote to uphold the provision two years ago was cast by Justice Brett Kavanaugh. In a concurring opinion, he said at the time that there should be some time limit to the redistricting provision. And it may be that he thinks that time has come.
A second possibility is that the court’s decision upholding the voting rights law just two years ago was not as firm as it appeared. Indeed, court observers were surprised by the outcome, as Roberts has in the past consistently opposed the Voting Rights Act. And some have theorized that Roberts and Kavanaugh, the two conservatives in the majority, didn’t want to rule against the voting law just weeks before the court struck down affirmative action in college admissions as unconstitutional.
A third possibility is that the court was simply unable to reach a majority agreement late in the term, as it was being bombarded by dozens of cases filed by the Trump administration on the emergency docket.
Observers are watching to see what the court does this time.
