During the Supreme Court’s oral argumentsIn Merrill v. Milligan a case that could deal a severe blow to the Voting Rights Act, Ketanji Brown Jackson powerfully rebutted right-wing attacks on voting rights by using her own “originalist” analysis of the 13th, 14th and 15th Amendments to explain why congressional district maps cannot constitutionally be drawn in a “race-neutral” way.
Liberal judges are not generally adherents to originalism – a judicial approach that insists that constitutional provisions must be interpreted based on the popular meaning they had at the time they were drafted, and that has generally been used by conservatives to justify right-wing positions such as the overturning of Roe v. Wade. Jackson’s brilliant defense of voting rights turned the tables by crafting her own original argument to support the inclusion of race in district maps.
“The framers themselves adopted the equal protection clause, the Fourteenth Amendment, the Fifteenth Amendment, in a race conscious way,” Jackson said, responding to Alabama Solicitor General Edmund LaCour’s claim that maps must be created in a “race-neutral” manner.
The issue is Merrill is Alabama’s GOP-created district map, which includes only one Black-majority district out of seven districts, despite the fact that Black people comprise 27 percent of the population. LaCour was essentially arguing that a successful challenge of a district map must be supported by evidence of discriminatory intent. Congress has made it clear that a map is a violation of the Voting Rights Act if it has discriminatory effects, regardless of intent of mapmakers.
The state of Alabama is arguing that the consideration of race in drawing maps violates the 14th Amendment’s equal protection clause, claiming that it discriminates against white people.
“I don’t think we can assume that just because race is taken into account that that necessarily creates an equal protection problem,” Jackson said, schooling LaCour on the intent of the framers of the 14th Amendment.
Jackson noted “they were, in fact, trying to ensure that people who had been discriminated against, the freedmen during the reconstruction period, were actually brought equal to everyone else in the society.” She said that “the entire point of the amendment was to secure rights of the freed former slaves.”
Slavery was abolished with the 13th Amendment. The 14th Amendment prohibits states depriving the law of equal protection. And the 15th Amendment forbids abridgment of the right to vote on account of “race, color, or previous condition of servitude.”
Jackson cited Thaddeus Stephens, a Republican from Pennsylvania, as a source for the report of Joint Committee on Reconstruction. When he introduced the amendment, Stevens said that “unless the Constitution should restrain them, those states will all, I fear, keep up this discrimination and crush to death the hated freedmen.” (Stevens could have been talking about Alabama.)
“That’s not a race-neutral or race-blind idea in terms of the remedy,” Jackson observed, noting that the drafters of the Civil Rights Act of 1866 “specifically stated that citizens would have the same civil rights as enjoyed by white citizens. That’s the point of that Act, to make sure that the other citizens, the black citizens, would have the same as the white citizens.”
Since the framers were concerned “that the Civil Rights Act wouldn’t have a constitutional foundation, that’s when the Fourteenth Amendment came into play,” Jackson said. It provided “a constitutional foundation for a piece of legislation that was designed to make people who had less opportunity and less rights equal to white citizens.” That, Jackson told LaCour, “was doing what the Section 2 is doing here.”
Section 2 of the Voting Rights Act of 1965 prohibits any voting practice that “results in a denial or abridgment of the right of any citizen of the United States to vote on account of race,” which occurs when minority voters “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” Section 2 was enacted to enforce the 15th Amendment.
In 1980, in was ruled by the Supreme Court. Bolden v. City of MobileSection 2 of the Voting rights Act requires that relief be sought by the plaintiff. The plaintiff must show that the abrogation or reduction of voting rights was not discriminatory.
Two years later, Congress amended Section 2 in order to clarify that a voting process which has the In effect It is illegal to deny the right to vote because of race, color, language, or minority status. The discriminatory effect can be proved by considering the “totality of the circumstances.”
In January, a three judge-panel of the federal district court (including two Trump-appointees) concluded that Alabama’s map likely violates Section 2 of the Voting Rights Act, and ordered the state to create a second Black majority or plurality district.
A conservative 5-4 majority of the Supreme Court overturned the ruling by the district court and allowed the discriminatory maps to be used in the 2022 midterm election. Oral arguments were heard at the high court. MerrillOctober 4,
Even the right-wingers on the court appeared hesitant to adopt LaCour’s invitation to require discriminatory intent, which Congress has clearly rejected. But don’t be surprised if they find a narrower ground on which to uphold Alabama’s racist map.
They might rule that the new majority-Black district could not be “reasonably compact” to satisfy the test set forth in the Supreme Court’s 1986 decision in Thornburg v. Gingles. ItRedistricting maps that illegally limit the voting power a minority group must be challenged. The plaintiff must prove that the group is large enough to constitute a majority.
Brett Kavanaugh cited Alabama’s argument that the “district is too sprawling to be reasonably compact or reasonably configured.” Samuel Alito characterized that argument as “basic” and “least far-reaching.”
This ruling would be a significant obstacle to future redistricting maps challenges that claim they reduce the collective voting power for Black people.