The Washington PostDemocracy Dies in Darkness

Opinion The grim fate of the Voting Rights Act in the hands of the Supreme Court

The U.S. Supreme Court. (Al Drago/Bloomberg)
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Nicholas Stephanopoulos is the Kirkland & Ellis Professor of Law at Harvard Law School.

Will anything be left of the Voting Rights Act after the Supreme Court finishes with it? It’s looking pretty grim. In 2013, the Supreme Court dismantled the part of the law that required states with a history of discrimination to get approval for changes to election rules. Last year, the court all but eliminated minority voters’ ability to use another part of the law to challenge discriminatory voting restrictions. Now, the court has signaled its interest in frustrating the law’s aim of ensuring that minority voters are adequately represented.

The justices acted in a case from Alabama, where African Americans account for 27 percent of the population but a new map features just one Black-majority district among the state’s seven congressional seats. A panel of three lower court judges (including two Trump appointees) found that the map violated Section 2 of the Voting Rights Act and told the state to create another district where Black voters can elect the candidate of their choice.

On Monday, the Supreme Court stepped in, in a way that was doubly extraordinary. First, divided 5 to 4, it said the lower court had acted too close to the election — even though the primary is not until May and the general election is nine months away. Second, several conservative justices appeared open to Alabama’s radical claim that Section 2, whose goal is to improve minority representation, must be implemented in a way that’s “race-blind.”

The court does have a doctrine that instructs judges to avoid making changes to voting rules too close to Election Day. But it’s only February, and Election Day is barely visible over the horizon. It also wouldn’t take terribly long to draw new district lines; Alabama needed less than a week to draw its first map. And if this late is too late, district lines will rarely be open to challenge before they’re put to use. All states will have to do is drag their feet with redistricting. Then the next election will be too close for courts to demand changes.

Now to the substantive question. Alabama came to the Supreme Court with a bold new argument: Computers should be used to create thousands or millions of maps based exclusively on nonracial criteria. The numbers of “opportunity districts” (districts where minority voters can elect their preferred candidates) in these computer-generated maps should then be compared to the number of these districts in the state’s approved plan. A violation should be found only if the state-approved plan has fewer opportunity districts than most of the computer-generated maps.

But Alabama’s race-blind theory clashes with the text of Section 2. The provision’s language covers any district map that “results in” the dilution of minority electoral influence. In other words, line-drawers don’t have to intend to discriminate if the effect of their map is to dilute the minority vote. Alabama’s approach, however, is just a high-tech way to probe for a discriminatory motive. If an enacted plan has fewer opportunity districts than most maps spit out by a computer, the explanation is likely intentional discrimination. That logic is fine as far as it goes — but it’s not what Section 2 is all about.

Alabama’s theory is also at war with the court’s Section 2 precedent. The hallmark of that precedent is its race-consciousness — no surprise for a law intended to help racial minorities. For a Section 2 claim to succeed, minority voters must be concentrated enough that it’s possible to draw another majority-minority district. Minority and White voters must be racially polarized. Minority voters must be underrepresented. Alabama would scrap the racially sensitive doctrines painstakingly crafted by the court over nearly 40 years.

The consequences of upending the law would be terrible for minority representation, too. In a recent article, my co-author and I did exactly what Alabama urges, using a computer algorithm to produce millions of race-blind statehouse maps. We then compared the numbers of opportunity districts in these simulations to the numbers in states’ existing plans. In most cases, minority representation dropped sharply. In Alabama, for example, the number of Black opportunity districts fell from 27 in the enacted plan to a median of 23 (and sometimes as few as 18) in the simulations.

Nevertheless, the court’s conservative majority might be poised to rewrite Section 2 in the way that Alabama proposes. Justice Brett M. Kavanaugh, in a concurrence joined by Justice Samuel A. Alito Jr., said that the outcome of the case was not “clearcut” in favor of those challenging Alabama’s map. That can only be true if the court is preparing to transform the law.

More ominously, Chief Justice John G. Roberts Jr., while voting to leave the lower court order in place, flagged the only lower court decision to have embraced Alabama’s position, along with the article I co-authored examining the implications of that approach. The message is clear: The court’s conservatives are seriously considering a race-blind interpretation of Section 2 that would neuter its effectiveness.

If this comes to pass, decades of progress will be undone for minority voters. Already underrepresented, their voice in the nation’s legislatures will become fainter still.