Alabama Urges a “Race-Blind” Theory of the VRA

Rick surveyed the Supreme Court filings in the Alabama VRA case. I wanted to flag that Alabama’s position is exactly the “race-blind” theory of the Voting Rights Act that Jowei Chen and I described (very much without endorsing) in our recent Yale Law Journal article, “The Race-Blind Future of Voting Rights.” Current VRA doctrine is obviously race-conscious: The first Gingles factor asks whether an additional majority-minority district could be drawn; the second and third Gingles factors ask whether there’s racial polarization in voting; the totality of circumstances covers, among other things, the proportion of minority opportunity districts in a state; and so on. In contrast, Alabama would have VRA liability hinge on a single question: Did a state draw as many minority opportunity districts as would have arisen from a race-blind redistricting process relying only on non-racial criteria? Alabama claims that a race-blind line-drawing process would yield only a single Black opportunity district, meaning that the state’s failure to draw a second Black opportunity district doesn’t violate the VRA.

As Rick pointed out, Alabama’s position is a direct attack on the entire doctrinal infrastructure erected in Gingles and subsequent cases. Alabama’s position — which would effectively turn the VRA into a disparate treatment statute — is also at odds with the 1982 amendments to the VRA, whose whole point was to make the VRA a disparate impact law. Nevertheless, it’s likely that at least some Justices will be attracted to Alabama’s position for reasons that Jowei and I canvass in our article. We also analyze the racial and partisan consequences that would follow if Alabama’s position were endorsed by the Court. In a nutshell, (1) there would be substantially fewer minority opportunity districts in America, (2) the remaining minority opportunity districts would have smaller minority populations, and (3) the partisan effects would be minor except in the South, where Republicans would benefit.

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