Supreme Court unexpectedly upholds provision prohibiting racial gerrymandering

Updated June 8, 2023 at 8:58 PM ET

The U.S. Supreme Court on Thursday stepped back from the brink of totally gutting the landmark 1965 Voting Rights Act.

By a 5-to-4 vote, a coalition of conservative and liberal justices reaffirmed the court's 1986 precedent interpreting how legislative districts must be drawn under the landmark voting rights act, as amended in 1982. The court said that in Alabama, a state where there are seven congressional seats and one in four voters is black, the Republican-dominated state legislature had denied African American voters a reasonable chance to elect a second representative of their choice.

The decision could reverberate across other states, with reconsideration of how congressional lines are drawn in areas with significant Black populations.

Chief Justice John Roberts, who authored or joined prior decisions that gutted key parts of the voting law, on Thursday wrote for the court majority to preserve the way the voting rights law has been applied for nearly 40 years in redistricting cases. He was joined by fellow conservative Brett Kavanaugh and the courts three liberal justices — Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson.

"Given this court's recent record on the Voting Rights Act, this is welcome and surprising," said UCLA law professor Richard Hasen, who has written extensively about election law.

At issue in the case was Alabama's congressional redistricting plan, adopted after the 2020 census. The Republican-dominated legislature drew new district lines that packed large numbers of Black voters into one congressional district, and then spread out the remaining Black population in other districts so that Black voters had little chance of electing a second representative of their choice in a racially polarized state.

A three-judge district court panel that included two Trump appointed judges found that the state legislature's plan amounted to an illegal racial gerrymander under the Voting Rights Act. And on Thursday, the Supreme Court agreed.

"We see no reason to disturb the district court's careful findings," wrote the chief justice. The Alabama legislature's approach to redistricting, he added, was "an attempt to remake our jurisprudence anew," and was wrong in both "theory and practice."

Hasen said that the decision gives "minority voters a fighting chance to get fair representation as Congress told them they would get in 1982, so it is preserving the status quo."

University of Iowa Election law expert Derek Muller agrees, noting that a contrary ruling would have gutted the last remaining pillar of the landmark 1965 Voting Rights Act, undoing decades of settled law. The decision, he said, "also sort of speaks to Chief Justice Roberts' approach, saying, 'Look, we're not going to rock the boat. This is not something new.' "

But NYU's Richard Pildes notes, there is one thing new in the opinion, something that he says may at first blush be missed. Pildes, who had cautiously predicted the outcome in the case, said Thursday's decision "is more than just an affirmation of the status quo ... because this whole case is based on new technological developments that make it easier for challengers" to find ways to create viable districts to protect their rights under the Voting Rights Act.

Indeed, it was the new technology of computer-generated maps for redistricting based on traditional criteria like compactness and keeping counties together that produced the redistricting map with a second majority-Black district in Alabama — a district that now will likely result in a second Black member of Congress from Alabama, and possibly a second Democrat to boot.

Justice Clarence Thomas wrote the principal dissent on Thursday, a 47-page exegesis reiterating his long-held position that the court was "dividing the nation into racially segregated districts."

Roberts, in his majority opinion, acknowledged that concern, noting it is "not new." But he said Thursday's decision "simply holds that a faithful application of our precedents and a fair reading of the record before us do not bear them out here."

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