The Voting Rights Act is in Real Trouble
For the second time in less than a decade, the U.S. Supreme Court appears ready to eliminate a key section of the Voting Rights Act.
On Monday, the Supreme Court blocked a lower court’s decision that Alabama’s new congressional map was an illegal racial gerrymander. That locks in place the state’s map for its elections this year. It also tees up a future Supreme Court ruling — likely coming in the term that will start in October — that could gut or significantly weaken protections for minority voters under the Voting Rights Act (VRA).
The Alabama case represented a “textbook example” of the use of VRA protections, according to Michael Li, a redistricting counsel at the Brennan Center for Justice. “The fact that the Supreme Court took the case is ominous, plain and simple.”
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In 2013, the court ended the preclearance requirement, with Roberts writing for the majority in Shelby County v. Holder that the criteria used to determine preclearance states were outdated. As part of their efforts to pass new voting rights legislation, congressional Democrats spelled out new criteria, but they’ve failed to get bills through the Senate despite repeated tries, including an attempt just last month.
However, another key section of the Voting Rights Act, known as Section 2, remains intact. That’s what appears to be threatened by the court’s decision to hear the Alabama case.
Amendments to the Voting Rights Act adopted in 1982 required states to create districts that would allow minorities to elect their candidates of choice. Plaintiffs no longer had to show that they’d be harmed by proposed redistricting changes — by a majority-minority district being eliminated, for instance. Instead, there was a new requirement demanding that states enhance minority representation where appropriate.
In a 1986 case known as Thornburg v. Gingles, the Supreme Court put forward a set of rules to determine just when new districts favoring minority voters were required. Known as the Gingles test, it has three main parts. The minority group seeking relief has to make up a large enough share of the adult population to comprise a district. They have to show political cohesion, meaning most are likely to support the same candidates. And there has to be evidence of racially polarized voting, meaning that when minorities vote as a bloc, they’re likely to be outvoted by white voters.
Last month, a federal district court found that Alabama’s new congressional map failed the Gingles test. A large number of Black residents had been packed into a single district, leaving Black voters elsewhere with less of a chance of electing their candidates of choice than other Alabama voters. “Any remedial plan will need to include two districts in which Black voters comprise either a voting-age majority or something quite close to it,” the panel ruled.