Supreme Court Gives the Voting Rights Act a Tenuous New Lease on Life

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The main remaining power of the landmark 1965 law, over racial bias in political mapmaking, gets an unexpected buttressing from a court that had been weakening the law for years.

By Michael Wines

Reporting from Washington on voting rights issues

The Supreme Court's surprising decision on Thursday to effectively reaffirm the remaining powers of the 1965 Voting Rights Act has halted, at least for the foreseeable future, the slide toward irrelevance of a landmark civil rights law that reshaped American politics.

In 2013, Chief Justice John G. Roberts Jr. wrote an opinion that effectively gutted the heart of the act, a provision that gave the Justice Department a veto over changes in election procedures in states with histories of racial bias in elections. Two years ago, an opinion written by Justice Samuel Alito greatly weakened the law's authority over polling rules that reduced the clout of minority voters.

Supporters of the act expected the court to take an ax to the law's chief remaining authority, over political maps, in the latest case, Allen v. Milligan — a suit charging that Alabama had drawn its seven congressional districts to illegally limit Black voters’ influence to a single House seat.

Instead, Chief Justice Roberts, writing for the majority in a 5-to-4 ruling, reaffirmed the law's authority over racially biased maps and the arcane structure of legal precedents and court tests that underpin it.

Chief Justice Roberts and a second conservative justice, Brett Kavanaugh, indicated that though they joined the majority in this case, they still harbored reservations about the law, and in a court that has been willing to toss out precedents, a one-vote majority may be a slim reed. Even so, voting-rights advocates said the court's unexpected turn — and particularly the support from Chief Justice Roberts, a longtime skeptic of the Voting Rights Act — was heartening.

The act "is hanging by a thread, and that thread's name is probably John Roberts," said Bryan L. Sells, a Georgia lawyer who was a special litigator of voting-rights cases in the Justice Department from 2010 to 2015.

Bernard Grofman, an election-law scholar at the University of California, Irvine, called Thursday's ruling "an incredibly strong opinion — far stronger than anyone, certainly I, would have anticipated coming out of this court."

Professor Grofman, whose expert testimony was pivotal in defining the scope of the law in a 1985 Supreme Court case, Thornburg v. Gingles, said the majority opinion addressed "each of the main arguments of those who’d like to end the Voting Rights Act and replace it with race-blind districting — and those arguments are completely rejected."

The case involves a clause in the act, known as Section 2, that outlaws any election or voting practice that denies minority voters an equal voice at the polls. Section 2 has been used mostly to attack political maps that are drawn — intentionally or not — in ways that dilute the power of minority-group voters.

Over the years, court decisions have set out a dense set of standards for defining such maps and have said that while any maps that are drawn to replace them can take race into account, they must be based primarily on other longstanding district-drawing goals, like keeping together communities with common interests.

Alabama Republicans mounted a wide-ranging defense against the lawsuit's claims that their district maps were biased, but their most notable argument rested on a premise that has become a conservative article of faith: that racial discrimination should be addressed with race-blind solutions.

The Alabama legislators had argued that the way to judge any bias in their maps was not by using the established standards, but by comparing them with sheaves of computer-generated hypothetical maps that were drawn without any regard to race. By that standard, they said, their challenged map met benchmarks for fairness.

Chief Justice Roberts rejected that argument as "compelling neither in theory or practice," a response that conservative critics sharply questioned on Thursday. The National Republican Redistricting Trust, an arm of the national Republican Party, said it "maintains an indecipherable status quo."

Edward Whelan, a former law clerk for Justice Antonin Scalia who is now a political commentator, noted in an online post that Chief Justice Roberts himself had once said in a 2007 ruling that "the way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

The court's ruling on Thursday has national political implications in Alabama and three other states where Democrats would be likely to capture additional congressional seats if lawsuits over those states’ maps are decided their way.

The ruling paves the way for a federal trial in the Alabama case, where a lower court has already said that advocates calling for a second majority-Black congressional district in the state are likely to win. The decision also seems certain to clear away barriers to a trial in a similar case in Louisiana, where civil-rights groups argue that the Republican-controlled State Legislature also deprived Black voters of a chance to influence elections in a second House district.

The Supreme Court had delayed trials in both cases until it ruled on the merits of a Republican challenge in the Alabama case — the issue that was settled on Thursday.

The ruling also seems likely to influence a trial over racial bias in the Georgia congressional map, where plaintiffs also claim the State Legislature's map diluted Black voting influence in House elections.

Professor Grofman said the new ruling could also have repercussions in a South Carolina lawsuit, now before the Supreme Court, contending that the legislature there had gerrymandered House districts to dilute Black voters’ influence in violation of the Constitution's Equal Protection Clause.

Beyond any transient partisan considerations, though, the ruling on Thursday is notable for preserving — at least for the moment — what remains of the Voting Rights Act.

When it was enacted in 1965, the 11 former Confederate states had a total of three Black state legislators. Today there are roughly 300. Back then, only 475 Black Americans held elective office anywhere in the nation; today, there are more than 640 Black mayors alone, representing 48 million citizens. In 1965, only 6.7 percent of Black Mississippians were registered to vote; three years later, the figure had risen to nearly 60 percent. Black voter turnout in a handful of states — Mississippi, Alabama and Louisiana among them — exceeded the turnout by white voters last November.

The act's reach grew to cover bias against Latinos, Asian Americans, Native Americans and other groups, making a law initially aimed at racism in the Deep South equally important in addressing voting rights in Alaska, Utah, Illinois and elsewhere.

The law's critics have argued that its very success shows that it has accomplished its purpose and is no longer needed — an argument that Chief Justice Roberts alluded to in his 2013 ruling. "Times have changed," he wrote then.

Experts say there is no denying that progress has been made. "Race has not gone away; that's for certain," said M.V. Hood, a scholar of Southern politics at the University of Georgia. "But white conservatives are happier to vote for minority candidates that are Republican than for white candidates that are Democrats. I don't think that would have happened 30 years ago."

Still, voting rights advocates say times have not changed nearly enough to merit dismantling the act.

Political scholars say voting is more polarized along racial lines today than at any time since the Voting Rights Act was passed. The divide widened in 2008 with the election of the nation's first Black president, and it widened again after Donald J. Trump was elected in 2016 and the Republican Party lurched further to the right.

"You’ve taken medicine; I’ve taken medicine," said Armand Derfner, a constitutional law expert at Charleston School of Law who argued some of the earliest Voting Rights Act cases before the Supreme Court. "The doctor says, ‘Finish this whole bottle of pills, even if you feel better halfway through,’ right?

"You don't want to just be better. You want to be cured."

Michael Wines writes about voting and other election-related issues. Since joining The Times in 1988, he has covered the Justice Department, the White House, Congress, Russia, southern Africa, China and various other topics. @miwine