I have now had a chance to review Alabama’s request for stays in 2 related cases (21A375 and 21A376). This post is going to get wonky and technical, so let me begin with the bottom line: if and when the Supreme Court reaches the merits (and that might happen in connection with these emergency petitions or it might not happen until the Court hears the full appeals in these cases and issues a ruling this year or next), the Court is being asked to cut back significantly on the scope of Section the Voting Rights Act in redistricting cases. A cutback could have major negative implications for African-American and other racial minority representation in Congress, in state legislatures, and in local bodies across the country, making it harder to require jurisdictions to draw districts where minority voters can elect representatives of their choice. And it would not surprise me to see this cutback from an increasingly conservative Supreme Court, even though I do not believe that this is the correct reading of the law.

Speaking very roughly and generally, jurisdictions like Alabama with large African-American populations have to navigate between two race-related rules in drawing district lines (aside from other requirements, such as state law requirements and federal constitutional requirements liking drawing districts with equal populations). First, Section 2 of the Voting Rights Act (as interpreted by the Supreme Court’s decision in Thornburg v. Gingles) requires states to draw districts where minority voters can elect their preferred candidates of their choice under certain conditions. (Those conditions are as a threshold matter that the minority group is large and geographically compact enough that one can draw a district where minority voters can elect their candidate of choice, and racially polarized voting.) Second, a jurisdiction may not make race the predominant factor in redistricting without a compelling reason to do so, or the district counts as an unconstitutional racial gerrymander in violation of the Equal Protection Clause of the Constitution’s 14th amendment. (This doctrine originated in the Supreme Court’s Shaw v. Reno case from 1993.)

That setup sounds tricky to maneuver: how can one comply with the VRA requirement to draw Section 2 districts to help minority voters without it being considered a racial gerrymander? The doctrinal answer the Court has given is that it has at least assumed (and at one point there were 5 Justices agreeing) that compliance with the VRA can be a compelling interest that can justify making race the predominant factor in redistricting.

In the Alabama cases, Alabama has one African-American majority congressional district, and a three judge court held in a lengthy unanimous opinion (including 2 Trump-appointed judges on the panel) that the VRA under Gingles required drawing a second African-American majority district. There’s no dispute that there is racially polarized voting in Alabama, with white voters preferring one set of candidates who usually defeat the choices of most African-American voters. And there seems no question that a second African-American majority district could be drawn in a reasonably compact way, at least compared to the districts Alabama itself has drawn for its own plans. So it seems like there’s a strong case that Alabama violated the VRA when it drew only one African-American majority district.

In its emergency application to the Supreme Court, Alabama is arguing (though they try to avoid putting it this way) that when considering the question of the requirement to draw another majority-minority district, a jurisdiction can’t go out of its way to do so by doing things like breaking up county lines or not following other traditional redistricting criteria. It can only draw a majority-minority district if it is really easy to do so ignoring race. If one has to ignore some of these traditional redistricting criteria to make a VRA district, Alabama argues, one is making race the predominant factor in redistricting and therefore engaging in an unconstitutional racial gerrymander.

There are two possible upshots if this argument is accepted: (1) the VRA is severely weakened because of what I’ll call the Shawfication of Section 2: making compliance with the VRA itself inherently suspect as unconstitutional. That would mean many fewer VRA districts; or (2) the VRA itself is unconstitutional as applied to most redistricting and compliance cannot serve as a compelling interest to justify drawing what would otherwise be an unconstitutional racial gerrymander. On this second point, there could well today be 5 Justices who agree with that viewpoint, given the change in personnel on the Court from when Justice O’Connor was on the Court in the 1990s and believed VRA compliance could overcome a Shaw claim. (In all of the Shaw cases, the Court has found that arguments by states that they had to draw some districts to comply with the VRA were faulty because they were based on a faulty reading of what the VRA requires.)

Both of these arguments are dangerous, inconsistent with precedent, and would represent a reinterpretation of the Voting Rights Act as a way to squelch minority voting rights even more. It would be a bookend to this past summer’s Supreme Court Brnovich decision that seriously weakened Section 2 of the Voting Rights Act in cases outside the redistricting context. The briefs of respondents (here and here) are strong on why Alabama is all wrong in its analysis under existing precedent.

Could the Court use this case to further eviscerate the Voting Rights Act? It certainly could. It would be very, very bad for voting rights and representation in the U.S.