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CNN
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With a sense of relief that the conservative Supreme Court did not use a major Alabama redistricting case to further gut the Voting Rights Act, civil rights advocates and election attorneys are preparing for a new flood of redistricting litigation lawsuits challenging political maps – especially in the South – they say discriminate against minorities.
In the 5-4 case decided Thursday, Alabama must now draw a second majority-Black US congressional district after Republicans were sued by African American voters over a redistricting plan for the 27% percent Black state that made White voters the majority in six of the seven districts.
The six White majority districts are represented by Republicans; the Black majority district is represented by a Democrat.
“I don’t think it’s going to stop Republicans from drawing racist maps,” Aunna Dennis, executive director of the voting rights group Common Cause, told CNN. “But I think that this empowers those of us pushing back and fighting that.”
The majority opinion – written by Chief Justice John Roberts, who was joined by the court’s three liberals and, in most parts, by Justice Brett Kavanaugh – effectively maintained the status quo around how courts should approach Voting Rights Act lawsuits that allege a legislative map discriminates by race.
By letting old precedent around the Voting Rights Act to stand in the case, called Allen v. Milligan, the Supreme Court has likely emboldened voting rights advocates to bring cases they previously thought would have been doomed.
Several election law attorneys and voting rights advocates have suggested to CNN they believe the decision could have a ripple effect across the South, in states like Louisiana, Georgia, Mississippi and Texas where cases claiming Section 2 violations are already working through the courts.
According to the Democracy Docket, a liberal-leaning voting rights media platform that tracks election litigation, there are 31 active federal cases involving Voting Rights Act redistricting claims similar to those in the Alabama case.
“I suspect that there are a number of states with lawyers who were considering filing a lawsuit similar to the Milligan lawsuit, but they held off because the prospects of how everyone thought Milligan would go were so dim. But now, you’re going to have a whole range of suits filed,” said Alabama voting rights attorney J.S. “Chris” Christie, who filed one of the two lawsuits that were before the justices in the Milligan case.
“Some of those will win, and some of them won’t. All redistricting suits are not the same,” Christie said, noting that Kavanaugh did not join an important part of Roberts’ opinion, depriving that section of a majority.
Still, he said, “Lawyers who file these types of lawsuits are going to be encouraged and are going to pursue those cases aggressively, knowing that the Voting Rights Act precedents are there.”
The ruling was a shock. The right-leaning high court, sometimes in decisions penned by Roberts himself, had been on a spree of landmark rulings over the last several years that had whittled down the scope of the Voting Rights Act. And in the flurry of emergency litigation last year ahead of the 2022 midterms, the Supreme Court repeatedly put on hold lower court rulings – including in the Alabama case – that would have ordered the redrawing of political maps ahead of last year’s elections, helping Republicans to narrowly reclaim the US House.
That meant that, at least in Alabama, the election was carried out under a redistricting plan that the Supreme Court has now affirmed to be likely unlawful.
“The fact remains that the Supreme Court previously allowed the same map that they just determined unconstitutionally, and systemically diluted Black votes be used in the 2022 election,” the Congressional Black Caucus said in a statement.
In Alabama, lower courts said early last year that the state’s congressional map likely violated the Voting Rights Act by diluting Black voting power. The courts ordered it redrawn in a way that was expected to produce a second majority-Black district, which would have shifted the partisan makeup of the state’s congressional delegation from 6-1 to 5-2.
But, in February 2022, the Supreme Court put those decisions on hold until the justices could hear and decide the case themselves.
At the heart of the dispute in the Alabama case was the way that, under longstanding Supreme Court precedent, race was used to determine if a map violated Section 2 of the Voting Rights Act, which prohibits voting procedures “not equally open to participation by members” of a protected class, like racial minorities. Alabama was putting forward an argument for a supposedly “race-blind” approach to VRA redistricting compliance, that if endorsed, would have defanged the provision.
Already, the Supreme Court led by Roberts had gutted a separate provision of the VRA that required certain jurisdictions (including Alabama and other states in the South) with a history of racially discriminatory voting policies to get federal approval for the maps that they drew.
The Supreme Court’s emergency move last year to allow the Republican-drawn Alabama map to stay in place had cascading effects in lawsuits across the country.
Some cases, like a challenge brought to Alabama’s state legislative redistricting plan, were put on hold.
In a Georgia case that concerned both the congressional and state legislative redistricting plans, a federal judge said that the plaintiffs were likely to succeed in at least some of the districts they were challenging, but he declined to grant the preliminary injunction, in part citing the Supreme Court’s emergency order.
The Supreme Court, meanwhile, also froze a lower court order in a legal challenge brought against Louisiana’s congressional map that made similar arguments as the Milligan case, as Louisiana legislators had drawn just one majority-Black district of the six districts in the 33% percent Black state.
The justices paused the case, where a federal judge was preparing to redraw the Louisiana map if the Republican lawmakers refused to do so, and said they were taking up the lawsuit but putting it on hold until the Milligan case was decided.
Now the challengers’ lawyers in that case are anticipating that the Supreme Court will send it back to lower courts, where they were poised to prevail under the approach to VRA redistricting cases that the justices have now left undisturbed.
Cases in Texas, Mississippi and elsewhere that inched ahead while the Milligan case was pending will go to trial without the threat that the challengers would need to prove their case under a drastically different Section 2 standard.
“If anything, we no longer need to make adjustments that we had potentially been preparing for because the state of the law remains unchanged,” said Texas Civil Rights Project attorney Sarah Chen, whose group is involved in several challenges to Texas maps, including a lawsuit over Galveston County’s redistricting plan.
“The Supreme Court did not endorse the radical changes proposed by Alabama in their arguments, the same changes that are also endorsed by opposing counsel in this Galveston redistricting matter,” Chen added.
While challenges to statewide maps are what get the most national attention, the ruling’s effect on how the VRA is applied to local races like county commission elections and school board seats “is really going to impact voters’ everyday lives,” according to Christie, the Alabama voting rights attorney, who said that Thursday’s opinion will be “huge” in a newly filed challenge to a county commission map in the state.
“Attorneys who file these types of lawsuits are going to be encouraged to pursue these cases knowing that the VRA precedent is there,” he said.
Even before they get into a courtroom, voting rights advocates see the Milligan ruling as valuable for discouraging state and local map drawers from diminishing the political power of communities of color, as it squelched expectations that the Supreme Court was about to make VRA challenges more difficult to bring.
“I am disappointed in today’s Supreme Court opinion but it remains the commitment of the Secretary of State’s Office to comply with all applicable election laws,” Alabama Secretary of State Wes Allen, the defendant in the Alabama case, said in a statement after the ruling.
In North Carolina, voting rights advocates had been reeling from a major defeat with the state Supreme Court recently ruling that North Carolina courts couldn’t police partisan gerrymandering. (Litigation over the state’s congressional plan is also before the Supreme Court in a legal dispute that does not concern the Voting Rights Act). They are finding a silver lining in that, thanks to Thursday’s ruling, the GOP legislators will be redrawing North Carolina’s political maps knowing Voting Rights Act protections for minority voters remain in force.
“We would hope that they would really take this decision to heart that they would make a genuine good faith effort to comply with Section 2,” said Hilary Harris Klein, the senior counsel for voting rights with the Southern Coalition for Social Justice.
Thursday’s ruling, said Deuel Ross, the deputy director of litigation at the NAACP Legal Defense and Educational Fund, “puts state legislatures and local redistricting bodies on notice that the Voting Rights Act is here to stay and if they deny communities of color the representation they deserve, that they will face lawsuits.”
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