The U.S. Supreme Court on Tuesday engaged in an emotionally charged debate over whether to impose new limits on the Voting Rights Act and curb longstanding protections against race discrimination in the drawing of electoral maps.
Several of the court's conservative justices showed openness to raising the legal bar for challenges to maps that may deny a minority group equal opportunity to elect preferred candidates.
Justice Samuel Alito suggested the current standard is so loose that a state can never win. "As a practical matter, in every place in the south, and maybe in other places," he said, "will not the plaintiffs always run the table?"
Civil rights groups fear any narrowing of the law could seriously undermine the landmark VRA, which the court's conservative majority has already sharply curtailed in a series of recent decisions.
"This is an important statute. 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," said Justice Elena Kagan who argued forcefully for its defense.
Evan Milligan, center, plaintiff in Merrill v. Milligan, an Alabama redistricting case that could have far-reaching effects on minority voting power across the United States, speaks with members of the press following oral arguments outside the Supreme Court on Capitol Hill in Washington, D.C., Oct. 4, 2022.
Patrick Semansky/AP
The justices heard nearly two hours of oral argument in the case, Merrill v. Milligan, which is a dispute over congressional maps drawn by Alabama's Republican-led state legislature in 2021 following the 2020 census.
A group of black residents alleges the state's seven newly drawn congressional districts -- only one of which is majority Black -- dilute black voting strength in violation of federal law. Black voters make up roughly 27% of the voting age population in Alabama.
U.S. Solicitor General Elizabeth Prelogar, arguing in support of the challengers to the Alabama redistricting, called the maps an "extreme and atypical case of vote dilution" and invoked the state's long history of racial polarization.
She warned that "nothing would stop Alabama and many other states from dismantling their existing majority-minority districts, leaving black voters and entire swaths of the country with no ability to elect their preferred representatives," if the Voting Rights Act were curtailed.
Alabama defended its maps as the product of a race-neutral process, arguing that requiring a state to take race into account when drawing districts would itself be race-based discrimination. "The plaintiffs seek a racially-gerrymandered plan," Alabama solicitor general Edmund Lacour told the justices.
A unanimous federal appeals court, including two nominees of former President Donald Trump, sided last year with the Black voters, ruling that Alabama needed to create a second majority-black district in order to comply with the Voting Rights Act.
"It's kind of a slam dunk if you just take our existing precedent the way it is, and the three judges below all found this," Justice Kagan said.
"This is such an edge case," Lacour replied. "It's hard to draw a second majority-minority district by accident ... and it's hard to do so on purpose."
A majority of conservative justices on the high court earlier in February granted Alabama's emergency request to block the lower court decision as their appeal proceeds. It means the challenged Alabama maps are in place for the 2022 midterm election.
While Justice Alito appeared most open to Alabama's proposed curbs to the VRA, Justices Brett Kavanaugh and Amy Coney Barrett signaled they may be less inclined to go so far.
Associate Justice Ketanji Brown Jackson stands with Chief Justice John G. Roberts, Jr., before the Supreme Court held a special sitting for her formal investiture ceremony, Sept. 30, 2022, in Washington., D.C.
Fred Schilling/Collection of the Supreme Court of the United States
The court's three liberals, including its newest member, Justice Ketanji Brown Jackson, vigorously protested any changes to the status quo.
"We're talking about a situation in which race has already infused the voting system. So, can you help me understand why you think that the world of, you know, race-blind redistricting is really the starting point in this situation?" Justice Jackson asked of Alabama's Lacour.
"It's to make sure that no one is being harmed," Lacour replied.
Section 2 of the Voting Rights Act requires states to provide minority voters with "an equal opportunity to participate in the political process." Congress amended the law in 1982 to explicitly make clear that challengers need only show a discriminatory result in a new map -- not prove ill-intent of the map drawer -- in order to bring a successful claim.
Jackson argued that authors of the VRA and of the Constitution's 14th Amendment guaranteeing equal protection of the law to all Americans explicitly took account of race because of the nation's history of slavery and racial discrimination at the time.
"You can't assume just because race is taken into account that there's an equal protection problem," Jackson told Lacour.
People walk across the plaza of the U.S. Supreme Court building on the first day of the court's new term in Washington, D.C., Oct. 3, 2022.
Jonathan Ernst/Reuters
"The entire point of the Amendment was to secure rights of the freed former slaves," Jackson continued. "I don't think that the historical record establishes that the founders believed that race neutrality or race blindness was required."
Lacour responded that the 14th Amendment is "a prohibition on discriminatory state action, not an obligation to engage in affirmative discrimination in favor of some groups."
The court is expected to hand down its decision in the case sometime next year.
A ruling in favor of Alabama could grant states more freedom in drawing their election maps and potentially blunt the influence of minority voters with less chance for them to seek remedy in court.