Justices Mull Latest Challenge to Landmark Voting Rights Law

By MARK SHERMAN

Alabama Solicitor General Edmund LaCour, right, speaks alongside Alabama Attorney General Steve Marshall following oral arguments in Merrill v. Milligan, an Alabama redistricting case that could have far-reaching effects on minority voting power across the United States, outside the Supreme Court on Capitol Hill in Washington, Tuesday, Oct. 4, 2022. (AP Photo/Patrick Semansky)

WASHINGTON (AP) — The Supreme Court’s conservative majority appeared open Tuesday to making it harder to create majority Black electoral districts, in an Alabama case that could have far-reaching effects on minority voting power across the United States.

The justices heard two hours of arguments in the latest showdown over the federal Voting Rights Act, with lawsuits seeking to force Alabama to create a second Black majority congressional district. About 27% of Alabamians are Black, but they form a majority in just one of the state’s seven congressional districts.

The court’s conservatives, in a 5-4 vote in February, blocked a lower court ruling that would have required a second Black majority district in time for the November elections. A similar ruling to create an additional Black majority district in Louisiana also was put on hold.

Conservative high-court majorities have made it harder for racial minorities to use the Voting Rights Act in ideologically divided rulings in 2013 and 2021. A ruling for Alabama in the new case could weaken a powerful tool that civil rights groups and minority voters have used to challenge racial discrimination in redistricting.

Some conservative justices seemed sympathetic to Alabama’s arguments that the court should insist on a “race-neutral” approach to redistricting and should make it harder for people claiming racial discrimination in voting to clear an early legal hurdle.

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Against pushback from Justice Ketanji Brown Jackson and the other liberal justices, Justice Samuel Alito said it’s too easy for people suing over discrimination in redistricting to win because the first bar in the legal test is too low — simply showing that another political district could be drawn in which minority residents make up a majority of voters.

In practice, Alito said, “will not the plaintiffs always run the table?”

The outcome appears to rest with Justices Amy Coney Barrett and Brett Kavanaugh. Their questions suggested they may be open to a more narrow win for Alabama than the broadest outcome the state is asking for, which might even allow states to dismantle existing districts where racial minorities make up more than half the voters.

Even the state’s “least far-reaching argument,” as Alito put it, would result in many fewer districts drawn to give racial minorities the opportunity to elect their candidates of choice, the court’s three liberal justices said.

Jackson, the court’s first Black female justice who was hearing her second day of arguments, disagreed with arguments made by Alabama’s lawyer, Edmund LaCour Jr., that redistricting has to be done without regard to race.

Constitutional amendments adopted after the Civil War were intended to give a “constitutional foundation for a piece of legislation that was designed to make people who had less opportunity and less rights equal to white citizens,” Jackson said. The Voting Rights Act “by its plain text is doing that same thing.”

Justice Elena Kagan referred to the Voting Rights Act as not only “an important statute” but “one of the great achievements of American democracy” while acknowledging that recent Supreme Court cases have cut back on the law. “Now, in recent years, the statute has fared not well in this court,” she said.

“You’re asking us essentially to cut back substantially on our 40 years of precedent and to make this, too, extremely difficult to prevail on, so what’s left?” Kagan said to LaCour.

Partisan politics underlies the case. Republicans who dominate elective office in Alabama have been resistant to creating a second district with a Democratic-leaning Black majority that could send another Democrat to Congress.

Two appointees of President Donald Trump were on the three-judge panel that unanimously held that Alabama likely violated the landmark 1965 law by diluting Black voting strength.

The judges found that Alabama has concentrated Black voters in one district, while spreading them out among the others to make it impossible for them to elect a candidate of their choice.

Alabama’s Black population is large enough and geographically compact enough to create a second district, the judges found.

Alabama argues that the lower court ruling would force it to sort voters by race and the state insists it is taking a “race neutral” approach to redistricting.

That argument could resonate with conservative justices, including Chief Justice John Roberts. He has opposed most consideration of race in voting both as a justice and in his time as a lawyer in Republican presidential administrations.

Roberts said little Tuesday to telegraph his vote. Justices Clarence Thomas and Neil Gorsuch also had little or nothing to say in court, but Thomas in particular has voted consistently to limit the reach of anti-discrimination laws.

The arguments were the first Supreme Court case involving race for Jackson. A challenge to affirmative action in college admissions is set for arguments on Oct. 31.

A decision in Merrill v. Milligan is expected by late June.