The argument traversed a wide range of detail and touched on many important issues. The Court did not seem interested in the most sweeping challenges to the VRA that Alabama’s brief put forward. At the end of the day, I believe the critical legal issues, based on the oral argument, can be distilled into three key points:
- The core of the VRA plaintiffs case, in a sentence, is that when voting is racially polarized, Sec. 2 imposes an affirmative obligation to create reasonably compact (or reasonably configured) districts, if possible, that provide a reasonable ability to elect for minority voters.
- One version of Alabama’s response, which Justices Alito and Kavanaugh pursued most fully, accepts this principle. The argument then becomes whether the second VRA district in this case is indeed reasonably configured. If the Court were to overturn the lower court decision, this would be the narrowest grounds on which it now appears the Court might do so. The issues would be largely factual ones about whether a proposed VRA district is reasonably configured. The way the Court applies this principle might well in practice cut back on how Sec. 2 has been applied in the lower courts; the devil would be in the details of what “reasonably compact” or “reasonably configured” would mean in application. But a decision on this basis would mean that the Court accepted the principle in point 1.
- A second version of AL’s response, which several Justices pursued (but I think not J. Kavanaugh, though I have to read the transcript), instead takes issue with the principle in point 1. Here the argument is that there is no affirmative obligation to create VRA districts — even if voting is racially polarized — if a large number of computer simulated maps using traditional districting principles would not generate another VRA district. In other words, even when racially polarized voting exists, there is no affirmative obligation to create a reasonably configured VRA district. The fact that such a district could be created is not enough: the obligation to do so would exist only if randomly drawn race-blind plans applying the state’s traditional districting principles would produce that result. Were the Court to adopt this position, there are many further questions that would have to be resolved regarding how to apply it. But a decision on this basis would constitute a much bigger change, both in how Section 2 is understood and in practical application.
Based on the argument, I think the case comes down to these 3 points and how the Court resolves them. If a majority of the Court does decide to overturn the lower-court decision, much will then turn on whether it does so by taking path 2 or 3.