Editors’ note: The following essay forms part of “Affirmative action & the law: a symposium,” a special section exploring topics to be addressed in the current Supreme Court session. Roger Kimball’s introduction can be read here.

The Supreme Court will hear arguments this month in a case from Alabama that could decide how far the federal courts can go in requiring state legislatures to consider race in drawing congressional district lines. The Voting Rights Act of 1965 prohibits voting practices or procedures that discriminate on the basis of race or membership in several minority-language groups. The federal courts have used the act as a basis for intervening in districting disputes to protect the rights of minority voters. The plaintiffs in Merrill (Alabama) v. Milligan argue that the Voting Rights Act (vra) requires the state to consider race as a major factor in mapping districts, while Alabama claims that maps should be drawn wherever possible on a race-neutral basis.

The main facts are not in dispute: Alabama was apportioned seven congressional seats following the 2020 census, the same number as the state has received in the wake of every census since 1970. Last year the legislature, with a Republican majority, approved a post-census map with six white-majority districts and one “minority-majority” district, similar to maps approved by the federal courts and pre-cleared by the Justice Department after the 2000 and 2010 censuses. The legislature’s new map is very near to the one used for more than two decades.

The plaintiffs are members of racial-advocacy organizations—the naacp Legal Defense Fund and the American Civil Liberties Union Foundation—associated with the Democratic Party in Alabama. They claim that there are a sufficient number of black voters in the state to justify a map with two black-majority districts and that such a map is required under the Voting Rights Act. The argument goes that blacks make up 27 percent of the state’s population, and so they deserve two rather than one of the seven seats. The plaintiffs have submitted a new map that subtracts some of the excess black voters from their “safe” district and reallocates them to a new, second district with a majority of black voters. In their view, the state’s map dilutes black votes by packing too many of them into a single safe district.

The legislature’s new map is very near to the one used for more than two decades.

Alabama argues that the plaintiffs drew their alternative map using a racial outcome as the goal, a tactic the Supreme Court has ruled invalid in earlier cases. The plaintiffs’ new district, as Alabama points out, runs from one side of the state to the other, breaks up local communities, and “cherry-picks” voting precincts with black majorities to create a second safe seat for minority candidates. According to Alabama’s brief, the plaintiffs’ map makes no geographical or political sense because it was drawn to produce a racial outcome. In addition, the proportion of blacks in the state did not change between the censuses in 2010 and 2020. If the current map was acceptable after the 2010 census, then (as Alabama claims) a similar map should be acceptable following the most recent census.

A panel of federal judges accepted the plaintiffs’ argument while issuing an order to redraw Alabama’s congressional map to provide for two “minority-majority” districts. The Supreme Court stayed that decision pending a full argument of the issues in the current term. In the meantime, the Court kept the state-approved map in place for the 2022 midterm elections.

Since agreeing to hear the Alabama case, the Court has stayed a lower-court ruling in a Louisiana case that raises nearly identical issues, on the assumption that any ruling in Merrill will cover that controversy as well. The Alabama case now gives the Court an opportunity to clarify the issues involved in accommodating the Voting Rights Act to the delicate business of drawing congressional- and legislative-district boundaries.

The Voting Rights Act was approved by bipartisan majorities in the House and Senate and signed by President Lyndon B. Johnson in 1965 to prohibit voting practices that discriminate on the basis of race or color. The vra banned literacy tests, overly cumbersome registration requirements, and other practices that were used (mostly in the South) to keep minorities away from the polls. It was an aggressive and far-reaching piece of legislation because it sought to enfranchise millions of blacks across the South who had long been denied the right to vote in violation of the Fifteenth Amendment. In addition, the law broke established constitutional precedents by authorizing federal officials to review and supervise state and local election practices. Johnson said beforehand that he wanted the “toughest” voting-rights bill his staff and allies in Congress could devise. By all accounts, that is what they gave him.

The act, while national in scope, targeted states and local jurisdictions that used tests and devices that restricted the opportunity to vote and where less than 50 percent of the voting-age population was registered to vote in the presidential election of 1964. Those jurisdictions, under Sections 4 and 5 of the vra, were required to seek “pre-clearance” from the Justice Department or the Circuit Court of Appeals in Washington, D.C., before they could make any changes in their electoral systems. Section 2 restated the language of the Fifteenth Amendment that prohibited the abridgment of the right to vote on the basis of race. Congress renewed and amended the act several times in the decades following its initial approval.

By any measure, that aspect of the law worked as intended.

The vra was designed to protect the right to vote on the assumption that influence at the ballot box was the basis upon which blacks would achieve equality with whites in those covered jurisdictions. As President Johnson declared at the signing ceremony for the vra on August 6, 1965, “Let me now say to every Negro in this country: you must register. You must vote.” By any measure, that aspect of the law worked as intended: voting participation by blacks surged across the South within a few years. By 1980, black voting participation in those targeted jurisdictions came close to matching white participation. In many of those areas today, black voter participation exceeds that of whites.

Nevertheless, federal officials soon expanded the reach of the law to cover electoral practices that went well beyond voting. That process began in earnest in 1969, when the Supreme Court struck down an at-large voting system in Mississippi (Allen v. State Board of Elections) because, as the plaintiffs claimed, it allowed a white majority to drown out a black minority, while a multi-member system might have led to the election of some minority representatives. As Chief Justice Earl Warren explained in the majority opinion, “the right to vote can be affected by the dilution of voting power as well as by an absolute prohibition on casting a ballot.” This represented a significant broadening of the act and meant that plaintiffs could call on the vra to challenge all manner of election rules and districting decisions that went beyond voting rights. As Abigail Thernstrom wrote in her excellent 1987 study of the vra (Whose Votes Count? Affirmative Action and Minority Voting Rights), “Allen began the process by which the Voting Rights Act was reshaped into an instrument for affirmative action in the electoral sphere.” The act, in other words, could now be used to shape election outcomes in addition to protecting voting rights.

What is vote “dilution”? That is a good question and one that has long defied clear judicial definition. The Supreme Court did not define or clarify it in the Allen decision. The concept is nowhere mentioned in the vra nor in debates over the legislation. Those who voted for the bill did not imagine that it might be extended to cover such a vague concept as vote dilution in districting decisions. Nevertheless, following the opinion in Allen, the vote-dilution claim evolved as a basis for numerous challenges to electoral systems and districting decisions under the Voting Rights Act.

The act could now be used to shape election outcomes in addition to protecting voting rights.

Congress, pressed by advocacy groups, has since expanded the reach of the vra to cover the voting rights of Hispanics and language-minority groups, thus extending the act to cover new jurisdictions and voting groups not originally included in the 1965 version. In 1982, Congress amended the vra to require political processes that are “equally open” to minority voters and which give them an equal opportunity to elect representatives of their choice. Those amendments also declared that plaintiffs, in order to prove violations under the act, needed only to show that electoral rules have discriminatory “effects” rather than discriminatory “purposes.” This eased their burden of proof and encouraged even more lawsuits challenging election rules.

These amendments, along with subsequent Supreme Court decisions and interventions by the Justice Department, have broadened the meaning of the vra to require fairness and equal outcomes in election rules. The number of minorities elected to office is now taken as a measure of compliance under the Voting Rights Act even though the original purpose was to defend voting rights. This expansion of the reach of the vra has drawn the federal courts ever more deeply into districting disputes of the kind in play in the Alabama case and in other controversies now before the Supreme Court. The great majority of these cases rest upon claims that minority voting strength has been “diluted” by state legislatures in districting decisions that pack black voters into a single district or disperse them among many districts, thereby curtailing the influence of their ballots.

The Supreme Court has wrestled for several decades with districting issues under the Voting Rights Act without advancing clear and predictable rules for legislatures to follow. The general rules now in place were outlined in a unanimous opinion in Thornburg v. Gingles (1986) in which the Court struck down North Carolina’s districting plan for state legislative seats because it unlawfully diluted the power of black voters by dispersing them among districts where they would be outvoted by whites.

In the course of that opinion, the Court set forth a three-pronged test under Section 2 to demonstrate dilution of minority votes: a minority group must show that it is sufficiently large and compact to form a majority in a single member district; the group must show that it is politically cohesive; and also it must show that its opponents also vote cohesively in the opposite direction, specifically against minority candidates. The latter two criteria stipulate that, if blacks and whites vote in opposition, then blacks must have districts where they are in the majority if they are to elect preferred candidates. The decision in Gingles thus accepted the main premise behind the lawsuit: that the Voting Rights Act requires legislatures to create voting districts where blacks have safe majorities and can elect their own representatives. The Gingles tests reinforced the idea that legislatures must use race as a basis for drawing legislative and congressional maps, even to the point of creating bizarrely shaped districts with black majorities so as to comply with the vra.

The Gingles tests reinforced the idea that legislatures must use race as a basis for drawing legislative and congressional maps.

The Supreme Court soon began to back away from some of the expansive interpretations of the act and from the general idea of race-based districting by which states must guarantee election outcomes to black voters lest they be held in violation of the vra. In a series of subsequent decisions, the court held that states cannot use race as a predominant factor in drawing district lines (Shaw v. Reno, 1993), nor can they adopt extreme racial gerrymanders that are not compact or which make little geographical sense (Miller v. Johnson, 1995). The Court has also ruled (in League of United Latin American Citizens v. Perry, 2006) that the vra protects the rights of individual voters but not groups. Under this precedent, advocates for minority groups cannot claim that they are entitled to representation in proportion to their numbers in the population—since no group is entitled to make that claim. The Voting Rights Act, as amended in 1982, contained a proviso (insisted upon by Republicans as a condition for their support) explicitly rejecting such a standard. Yet this claim appears to be one of the main points raised by the plaintiffs in the Alabama case.

This is not the first time that the Court has set forth constitutional standards that are at once ambiguous and difficult to apply to emerging circumstances. According to the guidelines in Gingles, legislators may consider race to satisfy the vra, but not too much, lest they run afoul of the equal-protection clause of the Fourteenth Amendment; they may consider race as a factor in drawing district lines but cannot use it as their main criterion; they may create districts that dilute black votes, but not too much, lest they undermine fundamental voting rights. The ambiguity of the Gingles tests, qualified by more recent judicial decisions, leaves legislatures in the lurch in regard to what they can and cannot do under the vra. Ambiguous guidelines like these, at times “too hot” and at others “too cold,” are littered throughout Supreme Court jurisprudence in other areas as well, including college admissions, employment, and government contracting.

Ambiguous guidelines, at times “too hot” and at others “too cold,” are littered throughout Supreme Court jurisprudence.

Chief Justice John Roberts, in commentary on Merrill, acknowledged that “Gingles and its progeny have engendered considerable disagreement and uncertainty regarding the nature and contours of a vote dilution claim” under the vra. The current Court’s liberal justices, however, have signaled that they will side with the plaintiffs in the Alabama case. Justice Elena Kagan, in a dissent (joined by Justices Sonia Sotomayor and Stephen Breyer) from the decision to accept the case, wrote that the Alabama map represents a clear case of vote dilution. She and her colleagues would keep the Gingles tests in place while upholding the lower court’s decision that awarded the plaintiffs a second “minority-majority” district in Alabama. They claim that Alabama has packed too many black voters into one district, thereby diluting their votes and denying them an opportunity to elect a second representative from the state.

That approach would preserve the Gingles standards, along with the ambiguity and confusion surrounding them, while maintaining supervisory authority by the federal courts over districting decisions under the vra. This will invite more lawsuits over districting issues that present different facts to be resolved according to standards that remain unclear both to litigants and the justices themselves. It will also draw the federal courts more deeply into an area rampant with partisan conflict. No matter how the Court decides in future cases, it will be forced to take sides for or against one of the major political parties. (The plaintiffs in the Alabama case ask the Court to approve one more congressional district for the Democratic Party and one fewer for the Republican Party.)

In view of the doubts expressed by Chief Justice Roberts about the Gingles standards, a majority of justices appear ready to revisit the Court’s jurisprudence and perhaps to revise or throw out the guidelines announced in Gingles. This would be in keeping with the Court’s recent jurisprudence both in regard to federalism and the Voting Rights Act.

In a 2013 decision—Shelby County (Alabama) v. Holder—the Court struck down Section 4 of the Voting Rights Act because the coverage formulas (drawn up in the 1960s) under that section are out-of-date and no longer relevant to current conditions. As a result of that decision, jurisdictions previously covered under those formulas are free to change election rules without first seeking approval from the Justice Department. The decision also means that any new challenges to election rules or districting decisions must now be brought under Section 2 of the vra.

More recently, in Brnovich v. Democratic National Committee (2021), the Court upheld Arizona’s voting rules as consistent with the Section 2 of the vra, despite claims that the state’s rules against ballot harvesting and “out-of-precinct” voting adversely affect Arizona’s Native American and African American citizens. The Court held that Arizona laws did not impose burdens on any potential voter that exceed the usual burdens of voting, did not have racially discriminatory purposes, and indeed were designed for the legitimate purpose of deterring election fraud.

A majority of justices appear ready to revisit the Court’s jurisprudence.

In revisiting the Gingles standards, a majority on the Court may be ready to accept the reasoning of Justices Clarence Thomas and Neil Gorsuch (outlined in previous dissents and concurrences) that Section 2 of the vra protects voting rights of individuals (not groups) but does not extend to districting issues or election systems. This is also the position taken in an amicus curiae brief by the Project on Fair Representation, a group that has opposed racial gerrymandering in the past and which supports Alabama’s position in this particular litigation.

On that line of reasoning, the Court would dismiss vote-dilution claims as not covered by the vra, thus closing off this avenue for challenging districting decisions and substantially narrowing the reach of the act by limiting it to individual voting rights. That approach would be consistent with the original intentions of the authors of the vra, who sought to protect the fundamental right to vote, and with the plain language of Section 2, which bans state-enforced barriers to voting on account of race or color but says nothing about districting, vote dilution, or related claims.

A decision along these lines would require the Court to overturn a series of precedents dating back to the Allen decision in 1969 that originally established the vote-dilution standard and set in motion a half century of judicial intervention in this field. It would also require the Court to restrict the reach of the vra to voting rights while rejecting the expansive view of the act that requires race-consciousness and equal outcomes in elections. It would provoke more complaining from Democrats and the liberal press about an “out of control” Supreme Court, though such attacks are by now routine. Yet it would be a clear and clean approach, and one faithful to the original intentions of the Voting Rights Act, which protected the basic right to vote and did not seek to guarantee electoral outcomes.

The Court has recognized that it is difficult to disentangle racial and partisan motivations in districting when blacks and whites vote overwhelmingly for opposing parties, as they do in Alabama and elsewhere and as stipulated under the Gingles tests. Justice Samuel Alito made this point in a dissent in a recent voting-rights case from North Carolina (Cooper v. Harris, 2017): “If around 90 percent of African-American voters cast their ballots for the Democratic candidate, as they have in recent elections, a plan that packs Democratic voters will look very much like a plan that packs African-American voters.” In that circumstance, he asks, how is it possible to distinguish between a case of racial districting and one of partisan districting?

In the Alabama case, what the plaintiffs claim is racial bias looks more like a form of partisan districting designed to protect incumbents or to maximize seats held by one (or both) of the political parties. The Alabama legislature, in drawing its map, may have looked more at party than race: the “minority” district is a Democratic district. The Seventh Congressional District in Alabama, the safe “minority-majority” district, is entirely noncompetitive: in the four congressional elections from 2014 through 2020, the (Democratic) incumbent took an average of 98 percent of the vote in that district. Republican districts are also non-competitive, though not to this degree.

Republicans accepted this because in drawing a safe Democratic seat they were preserving six safe seats of their own. Democrats have upset that calculus by laying claim to a second safe seat under the guise of protecting minority voting rights. In asking for a second “minority-majority” district, the plaintiffs in Alabama are also asking the Court to create one more Democratic and one fewer Republican seat. Several justices have asked whether the proper role of the Court should be to act as referee in partisan disputes by rewarding one party and penalizing the other.

How is it possible to distinguish between a case of racial districting and one of partisan districting?

Three years ago, the Supreme Court ruled (in Rucho v. Common Cause, 2019) that federal courts cannot review allegations of partisan gerrymandering because they raise non-justiciable political questions, i.e., ones outside the purview of the judiciary. The Court, after wrangling with these issues for decades, finally concluded that it is impossible to take partisanship out of partisan decisions like those involved in the drawing of legislative maps. There is no obviously “fair” standard by which courts can resolve those disputes, especially in an age when computers can spit out an infinite number of district maps favoring one party or the other.

The decision in Rucho was a concession that the Court, as in the vra cases, had failed to come up with clear standards by which gerrymandering claims might be adjudicated. Because race and party are commingled in Alabama and elsewhere, the vra (along with the Gingles tests) functions less as an instrument to protect minority voting rights and more as a shield to advance the interests of the Democratic Party or to protect incumbents of both parties. That is another of the questions the Court faces in the Alabama case—whether the districting dispute in Merrill v. Milligan is really about racial discrimination under the Voting Rights Act or is just another partisan conflict covered by the precedent in Rucho.

The United States is now far into its third “racial regime” since the ratification of the Constitution: the first, based upon chattel slavery in the South, ran from the 1790s until it was ended by the Civil War; the second, based upon a racial caste system, was in place from the 1870s until it was outlawed by the Brown decision of 1954 and the Civil Rights and Voting Rights Acts of the 1960s; and the third, in place from the mid-1960s to the present, is the era of the civil-rights “revolution” or the “second reconstruction.”

This new regime began in the 1960s with high ideals about bringing minorities into the mainstream of American life but, according to many critics, has evolved over the decades into a “racial spoils system” in which claims of racial underrepresentation are pervasive in public and private life. That regime has at length polarized the nation by race and party, and invited federal courts to intervene in all manner of public and private and state and local disputes, but has done so without any constructive end or resolution in view. While many still proclaim the original ideals about a colorblind society or one in which individuals are judged by the content of their character instead of the color of their skin, those ideals are nowhere evident in today’s controversies over legislative districting, government contracts, college admissions, hiring and promotions, and the like.

That regime has at length polarized the nation by race and party.

The Supreme Court has played different roles in establishing or dismantling the racial regimes of the past. In Dred Scott v. Sandford (1857), the Court sought to resolve the issues arising from slavery in the territories but instead helped ignite the Civil War. Plessy v. Ferguson (1896) accepted a constitutional basis for the Southern caste system. In the opposite way, the Brown decision paved the way for the civil-rights revolution. Gingles and its progeny, along with other decisions of the Court, have contributed to today’s racial and partisan polarization. The Gingles standards encourage blacks to vote as a bloc and discourage those voters from forming coalitions with whites that might create new and different majorities. That is an unfortunate consequence of the modern regime that sees racial identity as a cardinal feature of American citizenship.

The harmful dynamic now in place dividing the races and the parties will not be redirected absent intervention from the Supreme Court. The Alabama case, combined with the Louisiana case and others now before the Court or likely to arrive soon, provides opportunities to set the country on a more constructive course, one in which the high ideals of the civil-rights revolution are more honored in practice than in political rhetoric.

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This article originally appeared in The New Criterion, Volume 41 Number 2, on page 18
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