Supreme Court looks set to further undermine Voting Rights Act: NPR

On Wednesday, the Supreme Court appeared headed toward another decision that undermines the landmark 1965 Voting Rights Act.

Once considered the crown jewel of the civil rights movement, the Voting Rights Act has been largely dismembered since 2013 by an increasingly conservative Supreme Court. The main exception was a decision just two years ago that upheld the section of the law intended to ensure that minority voters were not excluded from the process of drawing new congressional districts.

But on Wednesday, Chief Justice John Roberts, who wrote the ruling, downplayed the significance of the ruling, suggesting he did not view it as controlling the outcome of Wednesday’s case.

At issue during the more than two-hour court proceedings was the redistricting map drawn up by the Louisiana Legislature after the decennial census. After years of litigation, the state, with a population that was 30 percent black, first fought and then ultimately agreed to create a second majority-black district. Two of the six members of the state House of Representatives are African American.

Normally, that would have been the end of the matter, but a self-described group of “non-African-American voters” intervened after the new maps were drawn to oppose the legislative redistricting.

Arguing in front of the Supreme Court on Wednesday, Deputy Solicitor General Hashim Mooppan argued that black voters should not have gotten a second majority-minority district.

“If they were all white, we all agree they wouldn’t have a second district,” he said.

The Court’s liberal justices emphasized that the federal law is based on the effects of redistricting in a state like Louisiana where, as they noted, voters are so racially polarized that even white Democrats mostly don’t vote for black candidates. But conservatives on the Court seemed to have a different view. Justice Samuel Alito, for example, said that seeking partisan advantage is not the same as seeking racial advantage.

That’s not the case, said attorney Janai Nelson of the NAACP Legal Defense Fund. If race is used to gain partisan advantage, she argued, that is unconstitutional.

“The extremely racially polarized vote we have in Louisiana cannot be explained by party,” she said. “We are talking about a racially polarized vote that exceeds 84%.” This would essentially mean that all but 16 percent of white voters are not voting for black candidates.

Justice Brett Kavanaugh, who cast the deciding fifth vote in a similar Alabama case two years ago, reiterated his view that there should be an end point to racial remedies like this.

“Cases brought by this court in various contexts have shown that race-based remedies are permitted for a period of time…but they should not be indefinite,” he said Wednesday.

But Nelson responded that although many provisions of the Voting Rights Act were time limited, Congress deliberately refused to place a time limit on that provision. Additionally, she added, the nondiscrimination element of the Fifteenth Amendment to the Constitution, which gives Congress the power to enforce the right to vote, is also not limited in time.

Justice Elena Kagan asked Nelson what the results would be if the court struck down or otherwise limited the redistricting provision of federal law.

“I think it would be pretty catastrophic,” Nelson responded, pointing out that African-American lawmakers elected throughout the Deep South had won their seats thanks to federal law that mandated the creation of majority-minority districts.

Justice Neil Gorsuch then asked whether the law’s much-vaunted “breathing reserve” “intentionally discriminates on the basis of race.”

“No,” Nelson replied, adding that the only wiggle room in Louisiana was to ensure that precincts intended to dilute the black vote were eliminated.

Louisiana Solicitor General Benjamin Aguinaga countered that argument. He told the justices that “redistricting based on race is fundamentally contrary to our Constitution.”

To that, Justice Sonia Sotomayor pointed out that the last time Aguinaga appeared in court in this same case, last season, he argued for the creation of a new majority-black district.

“Are you bringing this back?” she asked.

Aguinaga did not fully answer the question. But the Supreme Court will.

If the court acts quickly, it could make it easier to eliminate Louisiana’s majority-black 2nd District before next year’s congressional elections.

Indeed, election law experts say that for Democrats, the worst-case scenario could mean a loss of as many as 19 congressional seats if, as seems likely, the court rules against the current understanding of federal election law.