WASHINGTON, D.C. (WHNT) — The U.S. Supreme Court heard more than an hour of arguments Tuesday concerning the Alabama U.S. House District map and whether it violates the Voting Rights Act.
The map was passed by the Alabama Legislature last fall and a group of plaintiffs sued to block its implementation, arguing it was discriminatory. Alabama argues its map is race-neutral and says remedies have to be as well.
Alabama has seven congressional districts. Six are majority white voter districts and there is one majority Black voter district.
The groups who sued over the map, which include the NAACP and the ACLU of Alabama, persuaded a three-judge panel that the maps should be redrawn. But Alabama appealed to the U.S. Supreme Court, setting the stage for Tuesday’s arguments.
Much of the questioning from the justices focused on technical issues like how proposed maps are built and whether the plaintiffs’ experts built maps that better follow the law, how historical racial inequality in voting led to the Voting Rights Act, and whether Alabama’s race-neutral argument was consistent with the standards the court has established in prior cases.
The arguments and the justice’s questioning spent significant time on Section 2 of the Voting Rights Act, which says in part, it is a violation of the act if it is shown political processes for nominating or electing candidates are not equally open. And that based on race or class, voters have less ability to elect candidates of their choice.
Section 2 reads:
“Denial or abridgement of right to vote on account of race or color through voting qualifications or prerequisites; establishment of violation
(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 10303(f)(2) of this title, as provided in subsection (b).
(b) A violation of subsection (a) is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.”
The court also focused Tuesday on discussion about a prior U.S. Supreme Court case, dealing with the Voting Rights Act, 1986’s Thornburg vs. Gingles, and how the current case applied. In the 1986 ruling, the court said, in part, “Minority voters who contend that the multimember form of districting violates (Section 2) must prove that the use of a multimember electoral structure operates to minimize or cancel out their ability to elect their preferred candidates.”
The plaintiffs told the high court Alabama’s black voters are 27% of the population but control just 15% of congressional districts, while white voters are 63% of Alabama’s population, but control 85% of congressional districts.
Lawyers for the State of Alabama say the state’s congressional map respects traditional districts, and communities of interest, and doesn’t discriminate.
Following Tuesday’s arguments, Alabama’s Solicitor General Edmund LaCour, who argued the case, spoke to Nexstar reporters.
“The Voting Rights Act, which was designed to take discrimination out of voting, cannot be used to affirmatively require the state to discriminate in how it draws its lines,” he said. “We think that is essentially what plaintiffs are pushing for here, but to the extent Section 2 applies to districting, it’s to prohibit racial gerrymanders, not to require states to draw them.”
The district court previously found that given Alabama’s growing black population a second black majority voter district should be drawn, or one close to it.
Deuel Ross, NAACP Legal Defense, and Education Fund senior counsel, said two Black majority voting districts aren’t ultimately the district that needs to be created. Ross said a district that includes some white voters who vote with Black voters and gives them a fair chance to elect the candidate of their choice, is “not even necessarily a guarantee.”
The State of Alabama has argued that the plaintiffs’ mapping experts couldn’t create a second district with a Black majority of voters without ignoring other legal standards and it required they used race as a criterion. Attorney Ross disagreed.
“This is a very technical legal argument, but what essentially what plaintiffs have to show as part of their Voting Rights Act claim is that it’s possible to draw an additional majority-minority district and we did,” he said. “We drew a district that looks very similar to a map that Alabama passed for its Board of Education (map) at the exact same time that they passed this discriminatory map for Congress.”
Some of the justices struggled with Alabama’s arguments about the Voting Rights Act requiring a racially neutral remedy.
Justice Elena Kagan told LaCour, “I think what Section 2 is trying to get at is it’s trying to ensure equal political opportunities,” she said. “It’s one of the great achievements of American democracy to achieve equal political opportunities regardless of race, to ensure that African Americans could have as much political power as white Americans could. That’s a pretty big deal.”
Kagan and LaCour went back a forth a bit on Section 2 and he replied.
“Whatever it means, it can’t be that we have to obliterate longstanding, unprecedented — I mean undisputed communities of interest in favor of districts that sort of arch across the state to connect people from Mobile and Dothan, which no neutral map drawer would ever do,” he said.
Justice Ketanji Brown-Jackson also addressed that concern, pointing to the history of Constitutional Amendments, enacted after the Civil War. The justice said those measures were enacted to confer full citizenship rights to former slaves, including the 14th Amendment, often referred to as the Equal Protection Clause. Section 1 reads, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
“It’s a race-conscious effort, as you have indicated,” she said. “I’m trying to understand why that violates the Fourteenth Amendment, given the history and — and background of the Fourteenth Amendment?”
LaCour took up the question.
“The Fourteenth Amendment is a prohibition on discriminatory state action,” said. “It is not an obligation to engage in affirmative discrimination in favor of some groups vis-à-vis others.”
The court’s ruling is not expected to be issued until late spring of 2023.