The bedrock principle of a democratic order is the right to vote. When election officials restrict an eligible citizen’s voting rights, they take the first steps toward authoritarian government. This is especially true when a state limits the voting strength of racial minorities.
Congress designed the Voting Rights Act of 1965 (VRA) to overcome this problem. In 2006, the law was overwhelmingly renewed for 25 years.
But in early October, the U.S. Supreme Court heard a challenge to a section of the law that protects racial minorities. At issue in Merrill v. Milligan is whether Alabama’s congressional redistricting after the 2020 Census violated a section of the law: Section 2 prohibits the denial or curtailment of the right to vote based on race.
This is not the first case challenging racial discrimination in Alabama redistricting. In 1960, the state changed the voting boundaries of the city of Tuskegee to eliminate nearly every African American voter from the city. Justice Felix Frankfurter, as an ardent advocate of judicial restraint, loathed to overturn an act of a democratically elected legislature. But he did here. In Gomillion v. Lightfoot, he declared for a unanimous court that “when a state exercises power wholly within the domain of state interest, it is insulated from federal judicial review. But such insulation is not carried over when state power is used as an instrument for circumventing a federally protected right.”
Based on the oral arguments before the court on Oct, 4 in the Merrill case, Evan Milligan and other challengers to the plan claim that the VRA’s Section 2 requires African Americans to be competitive in two, not one, of Alabama’s congressional districts. With its seven congressional seats, Alabama packed most African Americans, more than one-quarter of the Alabama population (some 27 percent), into one district.
Alabama Secretary of State John Merrill and other state officials ironically argue that race-conscious efforts violate the manifest tenor of the VRA. But the point of the law is to empower the votes of minorities, not dilute them. Its goal was to overcome the undermining of registration and voting that Alabama, and other jurisdictions initially covered by the VRA, engaged in with so-called race-neutral efforts: The result was voter suppression, not inclusion.
In oral argument before the court, the six conservative justices searched for a way to find Alabama’s new map “reasonable” without overturning Section 2. They may rule that the proposed Alabama congressional districts may remain in force, perhaps motivating other states to reduce the electoral impact of Black voters.
The court’s narrowing of voting rights is not new. In 2013, the Supreme Court in Shelby County v. Holder weakened another section of the law: Section 4 identified nine states, mostly Southern, 12 cities, and 57 counties with histories of creating racial barriers to voter registration and voting. If officials in any of these states or localities wanted to change election locations or procedures, Section 5 required them to obtain permission from the Department of Justice or a federal judge in the District of Columbia. These provisions are known as the preclearance requirement of the law.
The court found that Congress had not updated its list of covered jurisdictions since 1972. Chief Justice John G. Roberts Jr. noted in his majority opinion that “voting in the South no longer reflected ‘current conditions.’” In Shelby County, Alabama, he said, in 1965, 69 percent of all eligible white voters were registered to vote, whereas only 19 percent of black voters were. By 2004, the numbers dramatically changed: 74 percent for whites, as opposed to 73 percent for blacks. Roberts attributed this change to the VRA, but contended that Congress must update its formula to require preclearance.
The result: A growing number of states, now some 34, have restricted ways in which eligible citizens vote. These include: limiting mail-in ballots and drop boxes; reduced numbers of days for early voting; moving or closing election locations; empowered poll watchers to report voter fraud (a very unlikely threat, but intimidating to election officials); made it a crime to offer food or water to voters waiting in long lines; transferred the authority of secretaries of states to oversee elections to partisan bodies; added identification requirements such as the last four digits of a Social Security number; and more are coming this year.
The question now is whether the justices will go so far as to overturn Section 2 in its entirety. We likely won’t know the answer until June.
Jack Fruchtman, who lives in Aquinnah, has written “The Supreme Court and Constitutional Law,” now in its third edition, and “American Constitutional History,” now in its second.