The Constitution prohibits sorting citizens based on race. And yet, for far too long, lower federal courts had interpreted Section 2 of the Voting Rights Act to require states to do just that—particularly when it came to drawing legislative districts.
This put states between a rock and a hard place: They either had to comply with the courts’ misinterpretation of Section 2 of the Voting Rights Act or violate the equal protection clause of the 14th Amendment.
This long-percolating dispute came to a head when a lower federal court required Louisiana to draw a second majority-minority congressional district based on that court’s misinterpretation of the Voting Rights Act. But after Louisiana complied, a different three-judge district court found that Louisiana violated the Constitution by doing so.
Left with no choice, Louisiana came to the Supreme Court last year to resolve the dispute.
But the court didn’t do it. Instead, it took the unusual step of resetting the case for oral argument again this term. And today, in a 6-3 opinion written by Justice Samuel Alito, the Supreme Court confirmed what we already knew: Section 2 of the Voting Rights Act, when properly interpreted, cannot compel states to violate the Constitution, and those lower federal court decisions purporting to require states to draw legislative districts based on race were wrong.
Alito explained that “Section 2 of the Voting Rights Act … was designed to enforce the Constitution—not collide with it.” He further expounded that Section 2 “imposes liability only when the evidence supports a strong inference that the State intentionally drew its districts to afford minority voters less opportunity because of their race.”
To determine whether a Section 2 violation has occurred, courts have used a framework set forth in the 1986 Thornburg v. Gingles case. But as Alito pointed out, “Gingles was decided at a time when this Court often paid insufficient attention to the language of statutory provisions,” and it followed that pattern.
Alito made clear that the Gingles framework doesn’t need to be abandoned, but instead the court “need only update the framework so it aligns with the statutory text and reflects important developments since [the court] decided Gingles 40 years ago.”
Of particular note, he said that the “totality of circumstances” inquiry “must focus on evidence that has more than a remote bearing on what the Fifteenth Amendment prohibits: present-day intentional racial discrimination regarding voting.” He explained that if, as a result of the progress our nation has made in overcoming past racial discrimination, “it is hard to find pertinent evidence relating to intentional present-day voting discrimination, that is cause for celebration.”
Justice Clarence Thomas, joined by Justice Neil Gorsuch, wrote separately and would have gone further, saying that Section 2 “does not regulate districting at all.”
And Justice Elena Kagan, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, wrote a sky-is-falling dissent. But as Alito succinctly pointed out, Kagan’s dissent “is unabashedly at war with key precedents … [and that] Respect for precedent cannot be a one-way street.”
Given the court’s decision, states that have drawn legislative districts based on race, relying on lower federal courts’ misinterpretation of Section 2 of the Voting Rights Act, will now likely have to go back to the drawing board, which could have big implications for the upcoming midterm elections and beyond.
Fundamentally, though, today’s decision is a reaffirmation that there is no such thing as good discrimination because, as Thomas has previously said, “every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all.”
How much truer is that when it comes to deciding how we select our elected representatives.
