On Thursday, in a stunning 5–4 decision, the Supreme Court ruled that Alabama’s redistricting process had illegally diluted the power of Black voters. The majority opinion was written by Chief Justice John Roberts, who has generally been hostile to voting-rights concerns; in 2013, he wrote the majority opinion in Shelby County v. Holder, which threw out Section 4(b) of the Voting Rights Act. In this week’s opinion, Roberts preserved Section 2 of the V.R.A. Though he has concerns that Section 2 “may impermissibly elevate race in the allocation of political power within the States,” he wrote, “It simply holds that a faithful application of our precedents and a fair reading of the record before us do not bear them out here.” He was joined by the Court’s three liberal Justices and, surprisingly, Justice Brett Kavanaugh, who also wrote a separate concurrence. The dissenting opinion, written by Justice Clarence Thomas, accused the majority of “hijacking the districting process to pursue a goal that has no legitimate claim under our constitutional system: the proportional allocation of political power on the basis of race.”
To talk about the decision and its implications, I spoke by phone with Ruth Greenwood, the director of the Election Law Clinic at Harvard Law School. During our conversation, which has been edited for length and clarity, we discussed what could have been behind Roberts’s seeming change of heart, what the decision means for other states around the country, and what the concurring opinions and dissents suggest about the future of voting rights.
What does this decision do, practically speaking, in Alabama?
In Alabama, it means that there will have to be a plan that allows Black voters to elect their candidates of choice in two out of the seven congressional districts.
As opposed to one in the previous redistricting.
Exactly.
Roberts wrote in his decision that the case was about “Alabama’s attempt to remake our Section 2 jurisprudence anew.” What is “Section 2 jurisprudence”?
Section 2 of the Voting Rights Act essentially repeats the promise of the Fifteenth Amendment. [The amendment prevents the infringement of the right to vote based on “race, color, or previous condition of servitude.”] Originally enacted in 1965, the idea behind the V.R.A. was that we had never been able to successfully bring Fifteenth Amendment claims, that we needed a statute to enfranchise Black voters in the country. In 1982, in response to a case out of Alabama about redistricting, Section 2 got amended. The question in that case was: we allow people of color to vote, but do we allow people of color to have an effective vote? Can they vote and aggregate their votes together to elect candidates of their choice?
At the time, Roberts was a staffer at the Department of Justice. He wrote a whole bunch of memos essentially opposing the 1982 amendments. [These amendments renewed the V.R.A. for another twenty-five years, and voided a Supreme Court decision that would have made claimants prove that any discrimination against them was intentional.] Since then, the Supreme Court has consistently applied Section 2 to redistricting claims at the local, state, and federal level. And it has been used to allow communities of color—so not just Black communities but Latino, Asian, and Native American communities—to vote together to elect candidates of choice.
One of the briefs that we filed in this case pointed out that, in the past decade, only two legislative districts at the state or federal level were able to be changed based on violations of the V.R.A. But, at the local level, or the county level, and with school boards, literally thousands of representatives have been able to be elected by communities of color because of Section 2. That’s why it’s so important to the civil-rights community.
Here, Roberts is saying that his decision doesn’t actually alter anything in Section 2, but that Alabama’s new map would’ve interfered with it. What is he arguing? Do you agree with him?
I am shocked to say I completely agree with Chief Justice Roberts here. What Alabama was suggesting would’ve completely derailed Section 2 from being an anti-discrimination statute. They were suggesting, at the most extreme level, that Section 2 is entirely unconstitutional and should not be applied at all. But, at a slightly less extreme level, they said that when you are looking at whether a community of color is disenfranchised, you have to compare that to what they call a “race-blind baseline.”
The way these cases have always been run is that, when you are the plaintiff, you go into court and you say, “Here are seven congressional districts. At the moment, one of these districts is electing the candidate of choice of Black voters, but we can actually draw a second district.” What Alabama said was that you have to draw that plan without considering race. And what they really said was what you have to do is run simulations to see whether, on average or in the median, you would tend to get a district that enfranchises people of color. And what Roberts says very forcefully is that that is completely inapplicable in the case of the V.R.A., which is a race-conscious statute. It is trying to prevent racial discrimination. And so we should never apply a race-blind baseline in that context.
At the same time, Roberts has a phrase about how people will say that the Court is elevating race in the “allocation of political power,” and he’s saying that the decision does not in fact do that. What is the line he’s trying to walk there?
I think he’s trying to note that, for you to live up to the promise of the Civil War amendments, whereby we say we don’t want there to be racial discrimination anymore, you actually need to be race-conscious in the way that you operate—which sounds insane, because he was the person who wrote, in a school-integration case, “The way to stop discriminating on the basis of race is to stop discriminating on the basis of race.” This implied that he didn’t like race consciousness. But in this case he seems to say that we do in fact need to be race-conscious if we are to prevent discrimination through the redistricting systems around the country.
My next question was going to be whether you were stunned by this decision and how you understood it in light of Roberts’s general skepticism of the V.R.A. But I think you’ve already answered—it sounds like you are stunned by the decision and you don’t totally understand it. What do you think is going on?
So, yes, I am completely shocked. There is no version of what happened today that I had predicted. We had fifteen different possible outcomes about how to prepare for the decision, and this was nowhere on my bingo card. My most cynical take is that the Court hasn’t released its affirmative-action decision, and perhaps Roberts is seeking some cover to completely eviscerate affirmative action by saying “Hey, but look—I left you with the Voting Rights Act.” It may also be that during the argument he saw Justice Ketanji Brown Jackson talk about the importance of these statutes to communities of color and maybe hearing that articulated by a Black woman affected him.
Hmm, that’s a bit sentimental.
The other thing is that the footnotes are pretty vicious about Justice Thomas. They reminded me a little bit of the Scalia footnotes that would’ve been reserved for the liberals. And I could be wrong, but I don’t feel like we usually see that from Roberts. Maybe it is purely that he cares about stare decisis. But it’s hard for me to even say that with a straight face.
Is there some danger in focussing too much on Roberts? Because, even though he wrote the decision, and even though everyone is stunned given his previous jurisprudence on voting rights, he was not only joined by Justice Kavanaugh, which I think also surprised people, but the lower-court decision he was upholding was written in part by two Trump appointees. Is there something that Alabama was doing specifically that would cause so many conservative judges to recoil?
I am sure that, when Alabama drew this map, they drew it not caring for the fact that they were violating the current jurisprudence on Section 2, with the additional idea that they thought they had five votes on the Supreme Court that would support their interpretation. If you heard the oral argument, Justice Elena Kagan said the case wasn’t a hard one. If you look at the Roberts opinion, there are several paragraphs where he said that the lower court applied everything normally. So, Alabama was always aiming for the Supreme Court to say, We don’t like the current jurisprudence, and we want you to change it.
And Alabama did that previously, with Shelby County v. Holder, where the state said, We don’t want to have preclearance apply to us anymore. And it got the Court to say “Good point—we’re striking down Section 4(b).” Section 4(b) set out the preclearance coverage. It determined which places were, for want of a better term, so discriminatory that we couldn’t trust them to enact laws with respect to elections. And so they had to send any changes that they made to voting either to the D.O.J. or a D.C. district court for approval. The Court said that the preclearance coverage listed in Section 4 wasn’t constitutional as it was written, and it needed to be essentially updated for the times. They sent that back to Congress, and, lo and behold, Congress was too dysfunctional to come up with a new preclearance formula.
And so Alabama tried again, and they failed this time, but it’s not just Alabama where this has consequences. There are Section 2 cases pending in Louisiana and Mississippi, and they may well result in greater representation for Black voters. I think that this means that we will likely see changes in the district maps for statehouses and congressional lines in a number of Southern states, potentially even states outside of the South, before the 2024 elections.
That’s because lower courts will now refer to this ruling, and those cases won’t even make it all the way up to the Supreme Court, presumably?
Right. A number of cases were stayed while the lower courts awaited the Supreme Court’s decision. And so, now that they have seen that Section 2 applies in the regular way, they can go ahead and make their decisions. I think in many of the cases a lot of the evidence is already in. And so it won’t take a long time to end up with decisions.
Last year, in a 5–4 decision, the Court let the maps in Alabama and other states stand. Kavanaugh, in the majority opinion, wrote that it was too close to the election to rule otherwise. What did you make of that decision at the time and how do you understand it in hindsight? Should we take Kavanaugh at his word, that he was using some reasonable standard—that it was too close to the election—and now that it’s further from an election he came to a different decision? Or should we be cynical about it because it allowed Republican House members to get elected?
Actually, I’m not that cynical about this. Even if I don’t agree with him, Kavanaugh does seem to pretty consistently try to apply what’s called the Purcell principle, in a relatively grandiose way, as in he doesn’t like changing the rules of elections within four, five, or six months of an election.
In that case last year, the dissent from Roberts was essentially saying “Well, sure, if we change the Section 2 jurisprudence, then what Alabama did might be O.K.” That made all of us at the time think it was the death knell for Section 2. Why take this year’s case unless you’re going to change how Section 2 should apply? Instead, they took it, they stayed it, and then they said [on Thursday] that they weren’t going to change Section 2 jurisprudence. But it’s extremely frustrating for the voters of Alabama who’ve now had one election held under maps that violated the Voting Rights Act.
So you’re saying that they didn’t have to take the Alabama case this year because the lower court essentially said that this is a violation of Section 2. The very fact that they took it made people think they were going to overturn it.
Yeah, exactly. They have to do something with it because the case was decided by a three-judge district court, which has automatic right of appeal to the Supreme Court, but they can summarily affirm, summarily reverse, or take it and make a decision. In most cases, where they think a court has applied the law in the normal way, they would just summarily affirm. And that would be that.
Was there anything in this decision by Roberts that made you think you understood why they might have taken it, then?
My guess is that there was a change of heart by someone, and potentially by more than one person. But I don’t know.
What did you make of Kavanaugh’s concurrence, in which he stated that there should be some sort of time limit on “race-based redistricting”?
I don’t like that. I mean, not only because I think it’s wrong, but a statute that is trying to stop racial discrimination is necessarily time-limited because it won’t apply when there’s no more racial discrimination. So, as long as there continues to be discrimination, it’s good to have the statute in there. I worry a lot about it, though, because the Supreme Court seems to love signalling through concurrences and dissents what it would like future litigants to bring to it.
What was the substance of the dissent?
Justice Thomas has believed that the Voting Rights Act does not apply to redistricting since the nineteen-nineties, and usually writes short opinions about that. The fact that he felt the need to go into detail and also started citing racial-classification, or affirmative-action, cases suggests he’s feeling angry about something. I hope he’s feeling angry because the Court is going to uphold affirmative action. But I am a little puzzled by such a long defense.
Basically, Thomas believes that you shouldn’t apply the V.R.A. in redistricting. So he would straight up say, You can’t bring that case. Whereas Alito and Gorsuch like the idea of the race-blind baseline. They think that race consciousness is a problem when trying to cure racial discrimination.
But they believe that the V.R.A. can be operative in redistricting? It just has to be a different standard?
Right. But the standard that they would seek to apply would shatter the effectiveness of the V.R.A. around the country. I had the Illinois Fourth Congressional District on my wedding cake because I love that district. It was the district that for the first time allowed Latino voters from the northwest and the southwest sides of Chicago to vote together to elect a candidate of their choice. But it got criticized as looking weird because it looked like earmuffs, and it was drawn to go around the west-side district, which allowed Black voters to elect their candidate of choice. When you run simulations from a computer, if you were race-blind, you probably would never get that district—or not never, but you wouldn’t get it in the normal course. And so that sort of district would not be something you would ever get through an Alito or Gorsuch vision of the V.R.A.
That district was approved by a court in the nineties and through the decades has allowed for Latino power to grow in Illinois. And so I think districts like that maybe look a little strange, but really genuinely keep communities together, and are really important. And this decision to me suggests that that sort of district can continue to be drawn because communities don’t live in circles or squares.
Does anything in this case give you hope that there could be five votes for a more progressive approach to voting rights more broadly? Or this is just a strange case that, as we’ve talked about, is hard to know what to make of?
I don’t think I’m in a place to be hugely optimistic about the rest of election law. We still have the Moore v. Harper case that will potentially come out, with the independent-state-legislature theory. If not in that case, it will come out in another case. I don’t think that this case represents an amazing new direction, but it is a very clear protection of a really important civil-rights statute. So, for what it is, it’s incredible. ♦
