We Can’t Depend on This Supreme Court To Save Our Democracy. It’s up to Us.
By Leslie Proll
From Selma to Shelby County v. Holder, the state of Alabama has long represented the front line of the battle for our democracy. Earlier this month, the U.S. Supreme Court heard another voting rights case from Alabama, Merrill v. Milligan, which could determine whether the Voting Rights Act will continue to protect the right of communities of color to elect candidates of their choice. Coming before the 2022 midterm elections, when states and localities have imposed an extraordinary number of discriminatory barriers on voters of color, the case underscores a devastating truth: The Supreme Court has utterly failed to stop discrimination in voting, and it now may add one more significant hurdle to full political participation by voters of color.
The Alabama lawsuit is a textbook vote dilution case under Section 2 of the Voting Rights Act, making the Court’s review extremely alarming. Based on the 2020 Census, the Alabama legislature drew a congressional map that included only one majority-Black district out of seven — the same number that has existed since the first majority-Black district was drawn in 1992. But Alabama’s Black population is now at 27 percent, and longstanding redistricting principles support the creation of a second majority-Black district.
Black voters and civil rights groups filed the lawsuit, which alleges that Alabama’s map dilutes Black political power by “packing” a large segment of Black voters into a single district while “cracking” other Black voters among remaining congressional districts. A three-judge district court, including two Trump appointees, agreed. It concluded that Alabama likely violated Section 2 because “Black voters have less opportunity than other Alabamians to elect candidates of their choice to Congress.” The court blocked the new map and ordered the legislature to create a second majority-Black district, but the Supreme Court deployed its “shadow docket” to block that ruling without briefing or explanation.
On appeal, Alabama made the shocking argument before the Supreme Court that redistricting should be race-neutral and that to the extent Section 2 requires otherwise, it should be held unconstitutional. This provoked a powerful history lesson from new Justice Ketanji Brown Jackson at oral argument. She reminded us that the express purpose of the Voting Rights Act was to protect Black voters and that the framers adopted the foundational Fourteenth Amendment in a race-conscious manner. As Justice Jackson said, “They were trying to ensure that people who had been discriminated against, the freedmen during the Reconstruction period, were actually brought equal to everyone else in the society.”
There’s more. Alabama essentially argued that Black voters must make a showing of intentional discrimination for a Section 2 claim to succeed. In doing so, Alabama is attempting to relitigate a debate about standards for evaluating voting cases that was settled 40 years ago. In City of Mobile v. Bolden, another Alabama case, the Court held that Section 2 is only violated by intentional discrimination. But Congress rejected that interpretation by amending Section 2 to add a “results” test in 1982. That Alabama even raised this argument shows exactly what’s going on with this extremist Court: We are fighting battles we thought we won.
Thanks to the powerful new voice of Justice Jackson, a strong defense of the Voting Rights Act by Justices Elena Kagan and Sonia Sotomayor, and superb oral advocacy by Deuel Ross of the Legal Defense Fund and additional counsel (The Leadership Conference filed an amicus brief), the Court may avoid rejecting all consideration of race in the redistricting process for now. But even if the Court declines to fully embrace Alabama’s radical arguments, it still could substantially limit the power of Section 2 to address discrimination in redistricting.
LDF Sr. Counsel Deuel Ross in his oral argument before the Supreme Court in Merrill v. Milligan:
“Section Two [of the Voting Rights Act] is not an intent test or about putting on racial blinders. It is about equal opportunity, opportunity that Alabama's map denies Black voters.” pic.twitter.com/lZgkb83JoG
— Legal Defense Fund (@NAACP_LDF) October 4, 2022
Almost a decade ago, the Court issued Shelby County v. Holder — also out of Alabama — and effectively gutted Section 5, the heart of the Voting Rights Act. Section 5 required jurisdictions with a history of voting discrimination to preclear voting changes with the U.S. Department of Justice or a federal court to ensure they do not discriminate. Congress in 1965 reasoned that voting discrimination must be detected and prevented in advance because once an election occurs, it is very difficult to undo the damage. In the aftermath of Shelby County, the floodgates of voter restrictions opened with Alabama, North Carolina, and Texas racing to enact anti-voter laws waiting in the wings. Thousands of voting changes have followed, no longer subject to preclearance before enactment.
The ultimate tragedy is that the voting discrimination unleashed by Shelby County has continued unabated to this day and has imposed cumulative harm on our democracy. After the 2020 election, the same voter fraud myth fueling the Big Lie was regularly invoked by state legislatures to pass the highest number of anti-voter laws since the Jim Crow era.
Lawsuits challenging these discriminatory state laws under Section 2 have been undermined by another Supreme Court ruling in 2021, Brnovich v. DNC. During oral argument in Merrill, Justice Kagan powerfully recounted the Court’s recent assault on voting rights: She said that Shelby County eliminated Section 5 but noted that Section 2 remained. Then Brnovich said it was fine to construe Section 2 very narrowly in vote denial claims, because Section 2 really addresses vote dilution. Now, with a classic Section 2 vote dilution claim in Merrill, the Court is being asked, in the words of Justice Kagan, “to cut back substantially on 40 years of precedent and to make this, too, extremely difficult to prevail on. So what’s left?”
But this radically configured Court is not done with its assault on democracy. Not even for this term. On December 7, the Court will hear a partisan gerrymandering case from North Carolina, Moore v. Harper, which makes the widely discredited and extremist argument that the power of state legislatures is paramount in election matters. An adverse ruling endorsing the so-called “independent state legislature” theory could eviscerate the ability of state courts, state constitutions, governors, and even ballot initiatives to protect against gerrymandering, voter restrictions, and other anti-democratic action.
Once again, the civil rights community must protect rights we thought we had. Just this week, The Leadership Conference and several other civil rights organizations filed an amicus brief outlining the harms to voters of color should this radical theory prevail. As a sign of the threat posed to our constitutional system, we are joined in additional briefs by unlikely allies such as former Fourth Circuit Judge and conservative stalwart Michael Luttig, co-chair of the Federalist Society Steven Calabresi, and a growing list of conservative voices who are speaking out to protect democracy.
The upcoming election could not be more critical to the future of our fundamental rights. It is a travesty of justice that we cannot look to the Supreme Court for protection against the litany of discriminatory practices adopted to exclude communities of color and other underpresented groups from full participation in the political process at every level. We must take it upon ourselves to speak out, show up, and, in the words of our dear voting rights champion, the late Congressman John Lewis, “Vote like we’ve never voted before.” It is up to us to defend the front line of democracy. Everything we cherish is now at stake.
Leslie Proll is the senior director of the voting rights program at The Leadership Conference on Civil and Human Rights.