Supreme Court Sides with Democracy
by Kathy Goodman
Ten years ago, the Supreme Court radically reduced voting rights protections for racial minorities in their decision in Shelby County v Holder, which gutted Sections 4 and 5 of the Voting Rights Act. Those sections had required that any new voting laws passed in areas of the country that had traditionally infringed upon minority voting rights would have to be pre-cleared by the US Attorney General or a 3-judge panel of the DC Court.
This year, the Court took on another Voting Rights Act case, Allen v Milligan, challenging the constitutionality of Section 2 of the Act, which generally prohibits racial discrimination in voting. In a surprising ruling handed down last week, the Court sided with democracy and reinforced the protections found in Section 2 of the Voting Rights Act against racial discrimination in voting.
In Shelby County, the narrow 5-4 majority struck down the pre-clearance procedures in Sections 4 and 5 of the Voting Rights Act because they found that racial discrimination in voting was a thing of the past, and thus it was an unnecessary and unconstitutional burden to continue the pre-clearance procedures. Chief Justice Roberts assured us that Section 2 of the Voting Rights Act, which outlawed racial discrimination in voting but had no pre-clearance hurdles, was still valid law and could be used to remedy any unlawful practices. Unsurprisingly, the last decade has made it clear that racial discrimination in voting (and many other areas of American life) is not a thing of the past, and hundreds of racially discriminatory laws and racially gerrymandered maps have sprung into existence.
All of which led to the Voting Rights Act case this term, Allen v Milligan, in which Alabama, defending its racially gerrymandered voting map, argued that the Supreme Court should now find that Section 2 of the Voting Rights Act was also unconstitutional because it was an impermissible use of race as a factor in determining voting rights.
It is no surprise that voting rights advocates, and defenders of democracy in general, were holding their breath in anticipation of the decision in this case. Of the four Justices who dissented in the 2013 Shelby County case, only Sotomayor and Kagan remained, and the decision in Dobbs made it clear that this Court was unafraid of undoing decades of precedent and rolling back rights.
In Allen, however, Chief Justice Roberts stood up to his more right-wing colleagues and sided with Justices Sotomayor, Kagan, Jackson and Kavanaugh to reinforce the authority of Section 2 of the Voting Rights Act to strike down racially gerrymandered maps. The immediate result of the case is that Alabama’s congressional map will be redrawn for the 2024 midterms to have one more majority Black district in Alabama (which will likely mean one more Democratic member of Congress in Alabama).
The impact of Allen v Milligan is broader than just Alabama, however. There are Section 2 Voting Rights cases pending all over the country, and the Court’s ruling in Allen is a clear indication that many of those cases will result in fairer maps for 2024. Voting rights experts predict that both Louisiana and Georgia will likely each have one more majority Black district based on cases that are already pending final adjudication. Additional Section 2 cases brought in Texas and Florida could result in additional majority-minority districts being drawn in those states. All of this means that Democrats will have many more chances to regain the House in 2024.
In a larger context, for a nation demoralized by MAGA Republican attacks on democracy and the rule of law, the ruling in Allen was a welcome moment of optimism. As Marc Elias, one of the nation’s leading voting rights advocates put it, “Today the Supreme Court did not break democracy.”
|