What is the Supreme Court doing with the Voting Rights Act?

The Supreme Court has struck down provisions of the Voting Rights Act of 1965 before, and it now seems likely to curtail the law once again. Here’s everything you need to know:

What is the Voting Rights Act?

The Voting Rights Act of 1965 was signed into law by former President Lyndon Johnson to outlaw discriminatory voting procedures (such as literacy tests) adopted in large part after the Civil War. The landmark piece of legislation also expanded on the 15th Amendment, which in 1870 granted Black men the right to vote. The measure was later strengthened and reaffirmed in 1970, 1975, and 1982.

Within the last ten years, however, provisions of the Voting Rights Act have been struck down twice — the first time in 2013, and the second in 2021. 

In Shelby County v. Holder (2013), the Supreme Court ruled two sections of the Voting Rights Act unconstitutional: Section 5, which prohibited districts from changing election laws and procedures without official authorization; and Section 4(b), which defined the eligible districts as those that had a literacy test in place as of Nov. 1, 1964, and a less than 50-percent turnout for the 1964 presidential election. In a 5-4 decision, the high court determined the aforementioned sections were no longer applicable and that they inhibited the state’s constitutional ability to regulate elections. 

Later, in Brnovich v. Democratic National Committee (2021), the Supreme Court weakened Section 2 of the Voting Rights Act, which prevents voting procedures that discriminate on the basis of race, color, and language. In a 6-3 decision, the court found that Arizona’s policy of discarding legally cast but out-of-precinct ballots and its restrictions on mail-in ballots were in compliance with Section 2, despite criticism that the policies disproportionately impacted and disadvantaged Native American, Hispanic, and Black voters. 

Now, given the court’s current conservative supermajority and the case before it, there’s a chance the Voting Rights Act will once again be weakened. 

What’s happening in the court now?

The Supreme Court on Tuesday began hearing arguments for another Section 2-related case, this one concerning whether Alabama’s newly-drawn congressional maps are in violation of the 1965 law.

The state’s proposed maps contain only one district with a Black majority, despite Black people comprising over 25 percent of the state’s population, FiveThirtyEight reports. Critics of the maps argue they can easily be redrawn to include a second majority Black district and therefore must be. But Alabama Republicans have argued the maps are fine as-is, and that adding another majority Black district would go against race-neutral criteria they used when creating the districts.

The U.S. Eleventh Circuit Court of Appeals previously ruled against Alabama and mandated they add another majority Black district, reports CNN. But the state appealed the decision to the Supreme Court, which then agreed to take up the case this fall.

In oral arguments this week, Alabama Solicitor General Edmund G. LaCour Jr. argued that the Voting Rights Act covers only intentional discrimination against race, and that the Alabama map was “race neutral,” per The New York Times and Reuters. The conservative justices seemed somewhat “sympathetic” to at least the latter argument, Reuters adds, though Justice Samuel Alito was the only conservative judge to be active in their questioning, per the Times. Chief Justice John Roberts and Justices Amy Coney Barrett and Brett Kavanaugh asked mostly neutral questions, while Justice Clarence Thomas said very little; Justice Neil Gorsuch didn’t comment at all, the Times continues.

Much of the burden fell on the court’s three liberals: Justices Elena Kagan, Sonia Sotomayor, and the newest, Ketanji Brown Jackson, CNN writes. Judge Jackson immediately zeroed in on Alabama’s race-neutral argument, citing the Fourteenth Amendment as insurance “that people who had been discriminated against … were actually brought equal to everyone else in society,” and that it was “not a race-neutral or race-blind idea.” Justice Sotomayor added that Section 2 of the Voting Rights Act was intended to ensure that “a particular racial minority … can equally participate.” 

Arguing against, U.S. Solicitor General Elizabeth B. Prelogar said that a ruling in favor of Alabama would open the door for other states to gerrymander districts and render minority voters unable to elect their preferred representatives. 

What are the implications of this case?

Though the case is ongoing and a ruling has yet to be handed down, many expect the justices to lean toward Alabama and deal a serious blow to the Voting Rights Act. The concern rises in part from the fact that five of the conservative judges, excluding Chief Justice Roberts, voted in February to restore the state’s congressional map while its challenge against the lower court’s decision moved forward. (That means the map at the center of the case — the one with just one majority Black district — will be used in the 2022 midterms.) FiveThirtyEight also notes the court’s hostility to the 1965 law in recent decades as reason to believe it will favor Alabama.

In the long term, a pro-Alabama ruling means “states could essentially exempt themselves from the Voting Rights Act,” posits the nonpartisan Brennan Center for Justice. “Map drawers would never be required to draw a district giving minority voters an electoral opportunity except where the district also happened to comply with whatever assorted and often arbitrary ‘race-neutral’ criteria a state has in place at the time …. .” What’s more, it might encourage states to create “race-neutral” requirements so as to specifically and covertly limit the minority vote, the center says. 

“The new map creates only one district out of seven in which Black Alabamians can elect preferred candidates, despite comprising more than 27 percent of Alabama’s voting-age population,” argues the American Civil Liberties Union. Therefore it’s “essential” the court “uphold and affirm” the Voting Rights Act once again and require that the state redraw its maps. Further, one analysis cited by FiveThirtyEight found that “if other states used the ‘race-blind’ approach that Alabama is advocating for, the total number of majority-minority districts would be substantially lower,” FiveThirtyEight reports

“You’re asking us essentially to cut back substantially on our 40 years of precedent …,” Justice Kagan told a lawyer for Alabama. “So, what’s left?”