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OPINION

Multiracial democracy is under threat at the US Supreme Court

States and localities would have free rein to design rules that on the surface look ‘race neutral’ but really are thinly disguised pretexts for discriminating against minority voters.

Alabama state Senators Rodger Smitherman, left, and Jim McClendon look over maps during the special session on redistricting at the Alabama State House in Montgomery, Ala., on Nov. 1, 2021.Mickey Welsh/Associated Press

A showdown on the country’s emerging multiracial democracy is coming to the Supreme Court. If last year’s Supreme Court term was dominated by abortion, guns, and attacks on climate change regulations, the term that starts Monday will have race and voting rights squarely front and center. With a new conservative super-majority in the driver’s seat, the results could be devastating for American democracy.

The skirmishing kicks off Tuesday when the justices take up a dispute over whether the Voting Rights Act of 1965 requires Alabama to create a second Black congressional district in the state’s Black Belt — a mostly rural, 18-county region that is the birthplace of the Civil Rights Movement. Six decades after John Lewis marched across the Edmund Pettus Bridge, it remains one of the most economically disadvantaged parts of the country.

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Under longstanding Supreme Court precedents, this is about the easiest Voting Rights Act case there is.

In January, a panel of three federal judges that included two Trump appointees unanimously found that the design of Alabama’s map diluted the political influence of Black voters by surgically dividing the Black Belt region among multiple districts (“cracking” in redistricting parlance).

According to the trial judges’ opinion, their decision wasn’t a close call. The court noted that Alabama lawmakers chose to keep Black Belt communities like Montgomery and Tuskegee together in the non-congressional maps they drew. Maps submitted by the plaintiffs showed lawmakers could easily have done the same for their congressional map.

The court also found that avoiding unnecessary division of the Black Belt made sense for a whole host of nonracial reasons. Calling the Black Belt a community of interest of “substantial significance,” the court found the region had commonalties across “many, many more dimensions than skin color,” including a shared agrarian economy.

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Instead, Alabama lawmakers opted for a map where, due to strategic cracking of Black communities, candidates preferred by Black voters only have a chance of winning in one of the state’s seven districts — despite the fact that Black Alabamians now make up 27 percent of the electorate. This is exactly the sort of subordinating of minority voters through line-drawing choices that the Voting Rights Act was intended to protect against.

But, as it has done in many other cases, the Supreme Court used its shadow docket to put the ruling on hold, a worrying sign that the conservative super-majority may be prepared to continue, or even accelerate, a decade-long whittling away of the Voting Rights Act.

The relief Alabama seeks at the Supreme Court would gut much of what remains of the Voting Rights Act in favor of a bizarre “states’ rights” version. Courts would be barred from ordering creation of a minority district unless plaintiffs could show that it is possible to draw such a district while at the same time complying in full with whatever sundry — and often arbitrary — map-drawing requirements a state happens to have in place at the time. In Alabama, for example, this would include complying with a lawmaker-adopted policy that the majority Black city of Mobile and overwhelmingly white Baldwin County be in same congressional district because of their shared “French and Spanish colonial history.” (Yes, really.)

Under this radically reimagined Voting Rights Act, not complying to the T with state-law rules would be enough to trigger a finding that a map is an unconstitutional racial gerrymander drawn with “the noxious idea that redistricting begins and ends with racial considerations.” States and localities would have free rein to design rules that on the surface look “race neutral” but really are thinly disguised pretexts for discriminating against minority voters. In short, they could effectively self-exempt themselves from the Voting Rights Act. So much for the Constitution’s Supremacy Clause, which says that federal law is supposed to trump state law in the event of a conflict.

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And it’s not just the Voting Rights Act that is under threat at the high court. On Halloween, the Supreme Court hears a pair of cases challenging affirmative action programs at Harvard and the University of North Carolina that could see the court declare that the purpose of the 14th Amendment is not to help remedy racial discrimination but to insist on strict color blindness in all aspects of public life. That could open the door to attack on state laws that seek to protect minority communities in redistricting and voting. Then, later this term, the Supreme Court will hear a case from North Carolina where lawmakers are pushing a specious, made-up constitutional theory that state courts have no role in ensuring fair federal elections.

The Supreme Court should resist Alabama’s invitation to take a further knife to the Voting Rights Act. But if it does not, Congress must overcome its nearly decade-long failure to restore and strengthen the protections of the Voting Rights Act. States also will need to step up efforts to ensure representation for communities of color that are driving the country’s population growth in a world where race-conscious remedies may no longer be an option. It won’t be easy, but too much is at stake. Multiracial democracy is literally on the line.

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Michael Li is senior counsel for the Brennan Center’s Democracy Program.