Supreme Court Ruling on Redistricting Targets Voting Rights Act

March 25, 2022 | 2:18 pm
Tom Barrett/Unsplash
Michael Latner
Senior Voting Rights Fellow

On Wednesday, the US Supreme Court handed down a bizarre decision through the so-called shadow docket. SCOTUS struck down Wisconsin’s state legislative maps after a months-long impasse between the state’s Republican Legislature and Democratic Governor that resulted in the Wisconsin Supreme Court adopting the Governor’s proposed state Senate and House maps. Through such an aggressive move, the Supreme Court’s conservative majority may be preparing a siege tower from which it will further dismantle the Voting Rights Act, and the scientific basis used to identify and remedy racial gerrymandering. Anyone concerned about racial equality and democracy should be alarmed by this decision.

When courts adopt districting maps as a result of political authorities failing to do so, they tend to be inherently conservative. Wisconsin’s Supreme Court did just that, adopting a plan that they assessed had the “least changes” from the existing (2011) maps, while adjusting for malapportionment in order to make districts roughly equal in population. In adopting this fast-track legislation (elections are in four months), the Court recognized that, while the addition of one majority-Black district in Milwaukee (changing from 6 to 7) conformed to observed population changes, a Voting Rights Act claim regarding racial gerrymandering could be brought after the adoption of the new maps.

Striking down the plan, the US Supreme Court (SCOTUS) faulted both the Governor (the map proposer) and the lower court (the adopter) for failing to implement a full analysis of what are known as the Gingles criteria for assessing racial gerrymandering claims: 1) that a group of minority voters are geographically compact enough to create a district (majority-minority), 2) that they vote as a cohesive bloc, and 3) that a white majority regularly votes cohesively so as to prevent the minority coalition from electing their candidate of choice. The three-pronged Gingles test, and the statistical methods used to analyze these conditions, have become the scientific foundation for resolving racial gerrymandering disputes under the Voting Rights Act. Crucially, as noted in Justice Sotomayor’s dissent, there is “no precedent requiring a court conducting a malapportionment analysis to embark on an independent inquiry into matters that the parties have conceded or not contested, like the Gingles preconditions here.”

Further erosion of the Voting Rights Act

Why would the conservative SCOTUS majority create such a precedent now? For one thing, the decision provided another opportunity to reassert their opposition to proportionality as a standard for evaluating any equal protection claims, something the conservative majority has amplified in recent federal partisan gerrymandering cases. More importantly, by accusing the Wisconsin court of failing to apply a full Voting Rights Act analysis to the state’s mechanism for achieving protection for Black voters (creating a new single-seat majority-Black district), the conservative majority asserted its own, narrow definition of how a state redistricting plan should be evaluated, namely: “whether a race-neutral alternative that did not add a seventh majority-black district would deny black voters equal political opportunity.”

It appears that the conservative SCOTUS majority seeks “race-neutral” alternatives to considering racial composition and voting behavior–the basic data used in the Gingles tests. By undermining the Gingles criteria, they are free to use the remaining “totality of circumstances” criteria to evaluate whether state legislatures are otherwise violating their interpretation of “equal political opportunity.”

The decision reads as an intention to expand the protection of state legislatures that the Court majority articulated earlier in the case Brnovich v DNC. Writing for the majority in that decision, Justice Alito emphasized that any circumstance that has “logical bearing” on voting opportunity could be used to justify laws that have a disparate impact on voters of color, such as alternative voting methods. For example, voters of color lacking equal opportunity through one voting method might find opportunity if they pursue some other voting method. State legislatures need not even show that an enacted law actually protects voters from a real harm. They can simply assert a state interest in protecting “election integrity,” for example, from the threat of (mostly non-existent) voter fraud.

Such logic explicitly rejects the “least-restrictive means requirement” which forces a state to prove that the interest served by its voting rule “could not be accomplished in any other less burdensome way.”

In practice, this means that state legislative majorities will now be protected from having to minimize the burdens they place of voters of color. The path is being cleared to lay siege on what remains of the Voting Rights Act. We should be preparing for that moment.