In its last term, the U.S. Supreme Court — with its extremist right-wing supermajority — turned civil and human rights law in America upside down. The court handed down wildly unpopular rulings that ignored decades of precedent that criminalized abortion, tearing away women’s reproductive rights, eroded the separation of church and state, weakened gun safety laws and environmental regulation. The Court that just began its new term, is now poised to further strip away fundamental rights and protections for millions of Americans.
In the 2013 case, Shelby County v. Holder, a majority of justices ruled that Section 5 of the 1965 Voting Rights Act was unconstitutional, a provision that required states with a history of racial discrimination in voting to get “pre-clearance” that any election change they wanted to make would not be discriminatory. In the 2021 case Brnovich v. Democratic National Committee, Justice Samuel Alito laid out five so-called guideposts to assess if election laws were discriminatory or not under Section 2 of the Voting Rights Act, which many legal observers condemned as undercutting future challenges to biased election laws.
Between The Lines’ Scott Harris Marjorie Cohn, professor emerita at Thomas Jefferson School of Law and past president of the National Lawyers Guild. Here she warns that the Supreme Court is likely headed to a ruling in the Merrill v. Milligan, case that will further dismantle the Voting Rights Act’s Section 2 and in essence legalize election theft.
MARJORIE COHN: In the Merrill case, which is the case where the court heard oral argument on the fourth, the court appears ready to further gut Section 2 of the Voting Rights Act, but this time in the context of redistricting. In the Merrill case, which is an Alabama case, 27 percent of Alabama’s residents are black, but only 1 of its 7 congressional districts has a black majority, which reduces the probability of electing black representatives in a federal district.
A court composed of three judges, including two appointed by Trump, unanimously held that Alabama’s GOP-drawn congressional district map probably violates Section 2 of the Voting Rights Act, and that district court ordered Alabama to create a second district with a black majority or plurality. The district court cited Alabama’s extensive history of repugnant racial and voting-related discrimination and it found a substantial and undeniable evidence of socioeconomic disparities that hinder black Alabamians opportunity to participate in the political process.
Well, in February, five right-wing members of the Supreme Court put the brakes on that district court decision while the high court considers the case. And that means that the discriminatory map in Alabama is being used in the 2022 midterm elections. Section 2 of the Voting Rights Act is a really important provision because it also serves an important function in guaranteeing equal public resources for minority communities.
And according to the Brennan Center for Justice, jurisdictions where minority voters have successfully challenged discriminatory electoral districts, gaps in economic opportunity have narrowed. And that investment in basic infrastructure, like roads and schools has improved.
And this is probably the most disruptive case to minority voting in several decades. Even worse than Shelby County and Brnovich.
So moving to the oral argument, which happened again, as I said, on Oct. 4 the court’s right-wing majority seemed to be looking for a narrow way to uphold this discriminatory map in Alabama. The Alabama’s solicitor general, who is arguing in support of this discriminatory map, said that the Section 2 of the Voting Rights Act was only meant to cover intentional discrimination on the basis of race. But of course, the Congress ruled that if a law had discriminatory effects, even if they did not, the drafters of the law did not intend to discriminate.
That still violated Section 2 and that led (Supreme Court Justices) John Roberts, Amy Coney Barrett and probably Samuel Alito to say it’s pretty well-settled that this law is meant to cover discriminatory effects, not just discriminatory intent. Now, (Justice Clarence) Thomas said very little. (Justice Neil) Gorsuch said nothing at all. And the questions that Roberts and Barrett and (Justice Brett) Kavanaugh asked were mainly neutral questions.
So they really didn’t tip their hand, although they probably are not going to buy the Alabama Solicitor General’s invitation to limit discrimination under Section 2 of the Voting Rights Act, only to intentional discrimination. But they look like they may find some narrower ground to uphold this discriminatory map.
Perhaps most interesting was Justice Ketanji Brown Jackson, who had just joined the court the day before for her first (argument). And this is her second oral argument. And she was very vocal and very persuasive and very articulate. And she provided, Scott, kind of an originalist analysis of the 14th Amendment. She talked about the race-conscious goal of the drafters of the 14th Amendment. She said they were trying to ensure that people who had been discriminated against were actually brought equal to everyone else in society.
And then Justice Jackson said, that’s not a race neutral or race blind idea. So I think it’s pretty clear that the three liberals on the court, Justices Jackson, (Sonia) Sotomayor and (Elena) Kagan, will vote to strike down Alabama’s map. And it remains to be seen on what theory the six right-wingers vote to uphold it.
For more information, visit Marjorie Cohn’s website marjoriecohn.com.
Listen to Scott Harris’ in-depth interview with Marjorie Cohn (16:13) and see more articles and opinion pieces in the Related Links section of this page.
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