The conservative-majority Supreme Court on Tuesday will hear a major new case that could further weaken the landmark Voting Rights Act, enacted to protect minority voters, as the justices consider a dispute over Alabama’s congressional district map.
Alabama’s Republican attorney general, Steve Marshall, is asking the court, which has a 6-3 conservative majority, to unravel decades of precedent on how to remedy concerns that the power of Black voters is being diluted by dividing voters into districts where white voters dominate.
It is one of two significant election cases the court is hearing in its new term that started Monday, with the court set to consider later this fall a Republican effort to curb the ability of state courts to enforce state constitutional protections in federal elections. That could make it easier for Republican legislatures to restrict voting rights.
For the first time in the court’s history, two Black justices — conservative Clarence Thomas and liberal Ketanji Brown Jackson — will be on the bench together for a case concerning race issues.
The two consolidated cases being heard Tuesday arise from litigation over the new congressional district map that was drawn by the Republican-controlled Alabama Legislature after the 2020 census. The challengers, including individual voters and the Alabama State Conference of the NAACP, say the map violated Section 2 of the 1965 voting rights law by discriminating against Black voters. The new map created one district out of seven in the state in which Black voters would likely be able to elect a candidate of their choosing. The challengers say that the state, which has a population that is more than a quarter Black, should have two such districts and provided evidence that such a district could be drawn.
A lower court agreed in a January ruling, saying that under Supreme Court precedent, the plaintiffs had shown that Alabama’s Black population was both large enough and sufficiently compact for there to be a second majority-Black district. The court ordered a new map to be drawn, but the state turned to the Supreme Court, which put the litigation on hold and agreed to hear the case. As a result, the new map that the lower court had found to be discriminatory is being used in this year’s congressional election.
The Supreme Court was divided 5-4 in allowing the new map to be used, with conservative Chief Justice John Roberts joining the court’s four liberals in dissent.
The state argues that the lower court put too much emphasis on race in reaching its conclusions. Marshall says in court papers that the fact that the challengers were able to show that it was possible to draw a second majority-Black district was not sufficient evidence that the state’s actions were discriminatory. He cites other traditional “race-neutral” map-drawing factors that take into account such issues as regional culture and identity, as well as the requirement that districts have similar-sized populations.
“From the start, plaintiffs set out to create two majority-black districts,” Marshall wrote. “And the only way they could accomplish that goal was to intentionally sort Alabamians by skin color.”
The Supreme Court has in two cases over the last decade already weakened the Voting Rights Act, beginning in 2013 when it gutted a key provision of the law that allowed for federal oversight of election law changes in certain states. Last year, in a case from Arizona, the court made it more difficult to bring cases under Section 2.
Lawyers for the challengers say the lower court followed existing precedent, something that Roberts noted when he voted against blocking the decision.
“Alabama has very little to complain about. Instead, they are asking court to change the law,” said lawyer Abha Khanna, who is arguing the case.
The case is one of three the court is hearing in the current term in which conservative lawyers are pushing what they call race-neutral arguments favored on the right as a way to remedy race discrimination. In the others, the court will weigh whether to end affirmative action in college admissions and consider striking down part of a law that gives preference to Native American families seeking to adopt Native American children.
Lawrence Hurley covers the Supreme Court for NBC News Digital.