October 7, 2022

The Supreme Court Takes Aim at the Voting Rights Act, Again

Russ Feingold President

As we previewed on our Supreme Court Preview program and on our related podcast episode this week, one of the headline cases of the Supreme Court’s new term will decide whether federal courts can continue to provide relief to plaintiffs who successfully challenge racially gerrymandered electoral maps, or whether it will strike down what little power the Voting Rights Act retains.

Currently, Section 2 of the Voting Rights Act offers some safeguards against racial gerrymandering. Case in point, a lower court blocked Alabama’s congressional map due to its blatant racial gerrymander. The case, Merrill v. Milligan, should not have warranted the Supreme Court’s attention. It doesn’t raise any new questions or reveal any inconsistencies in the interpretation of Section 2. Alabama’s map left no doubt – it was an unlawful gerrymander, and the state should be forced to redraw the districts.

But this packed Supreme Court does not care about “should” or about precedent. It does care about its partisan agenda. So, earlier this year, the Court not only slated Merrill v. Milligan for its fall docket, the Court overturned the lower court’s injunction on the gerrymandered map. As a result, this November, when Alabama voters go to the polls, they will do so in nakedly gerrymandered districts – thanks to our highest court. The question is whether those gerrymandered districts, which dilute Black Alabamians’ voting power, will be allowed to stand in future elections and whether Section 2 of the Voting Rights Act will endure.

The Supreme Court’s conservative supermajority has been unabashed in its hostility towards voting rights, dating back to Chief Justice Roberts’ majority opinion in Shelby County v. Holder. The Court furthered eroded key protections in Rucho v. Common Cause and again in Brnovich v. DNC. Time and again the Roberts Court has shut the courthouse door in the face of voters seeking to vindicate their right to participate meaningfully and fully in our democratic processes. While many of us remain cautiously optimistic that the Court will not strike down Section 2 entirely, we are left wondering what real power it will have once a decision in Merrill v. Milligan comes down.

During oral arguments in the case this week, Justice Kagan rightfully described the Voting Rights Act as “one of the greatest achievements of American democracy.” And despite what some conservative justices insist on arguing, we are not in a post-race America. Alabama’s argument that redistricting criteria should be “race-neutral” is an argument for discrimination against voters of color. When Alabama says “race-neutral,” it means pro-white.

Justice Jackson put on a masterclass during the oral argument to explain to the Alabama Solicitor General and to her fellow justices how the VRA and the 14th Amendment were intended by their authors to be anything but race-neutral. As she said, the VRA “was designed to make people who had less opportunity and less rights equal to white citizens.” As such, any endorsement by this Court of Alabama’s argument would fly in the face of history, precedent, and fact. It would also be a devastating blow to this country’s pursuit of a multiracial democracy.

It is easy to be defeatist and outright cynical about this packed Supreme Court and its partisan agenda. I urge you not to turn away, however. The Supreme Court has long benefited from a deference denied to Congress and the Executive. Seen as above politics, we’ve stood back and awaited the Court’s wise words. Such deference, however, must be earned. And this conservative supermajority has done anything but earn our deference. We must speak out against this Court’s maltreatment of the rule of law, of its own precedent, and of our democracy. As difficult and as devastating as this term could be, it behooves all of us to stay engaged and stay outspoken. ACS will be doing just that as we advocate for this Court to be urgently reformed so its legitimacy can be restored.

I also do not want to miss the opportunity to urge everyone to vote. Early voting has already started in some states and will start shortly in others. As discouraging as it is to watch the Supreme Court’s decision towards the VRA, we should never allow that to discourage our own participation in the democratic process. Every opportunity we have to vote, we should vote. And that includes voting your full ballot. State court judges are increasingly on the frontlines of civil rights, and they are directly elected in many states. Make a plan to vote this election cycle and make sure that plan includes your full ballot.

2022 Supreme Court Vacancy, Democracy and Voting, Importance of the Courts, Judging (and Judicial Nominations), Judicial Diversity, Judicial Independence, Judicial Nominations, Judicial Nominations, Judicial selection, Supreme Court, Supreme Court Reform, Voting Rights