10 years ago, in his landmark opinion in Shelby County v. Holder, Chief Justice John Roberts promised that “our country has changed.” He made such a promise to justify the U.S. Supreme Court’s decision to disable a key portion of the Voting Rights Act (VRA): the preclearance provision that required states with histories of discrimination to receive federal approval before adopting maps or enacting voting laws.
For nearly 50 years, any change Alabama made to its election laws, including drawing new congressional maps had to be reviewed in advance and precleared under the VRA. If it failed preclearance, the change could not go into effect without the state bearing the burden of persuading a federal court the change did not harm minority voters.
That all changed in 2013 when one of its counties — Shelby County — argued that the “vestiges of discrimination” that once plagued the southern state no longer remain. Roberts agreed, removing Alabama from preclearance and assuring us that “things have changed dramatically” and that “blatantly discriminatory evasions of federal decrees are rare.”
From what we saw in Alabama last week, things have not changed nearly as much as the chief thought.
In its first redistricting cycle since the preclearance requirement was lifted in Shelby County, Alabama drew a new congressional map that discriminated against the significant Black population in the state. When a federal court struck it down, the state appealed and the Supreme Court allowed the illegal map to be used for the 2022 midterm elections.
After hearing the case and ruling against Alabama in June, the Court sent the state back to the drawing board, ordering it to follow a lower court ruling that required “two districts in which Black voters either comprise a voting-age majority or something very close.”
Last week, Alabama Republicans ignored the Court’s requirements. Instead, the Republican-controlled Legislature proceeded to enact a new map that creates only one majority-Black district. The next closest district to being majority Black is only 39% minority. That is not, as the court ordered, majority-Black nor “very close to it.”
What happened to “blatantly discriminatory evasions of federal decrees” being “rare”? The legislators who rammed through this noncompliant map knew what they were doing. Even Gov. Kay Ivey (R), who quickly signed the map, said that “the Legislature knows our state, our people, and our districts better than the federal courts.” To many, it sounded very much like little has changed in 50 years.
This obviously noncompliant map will now be reviewed by the same trial court that deemed the previous one was illegal. Presumably the court will replace it with a map drawn to meet its criteria. The court already hired a special master to complete this task if it became necessary. The hearing to review Alabama’s noncompliant map is set for Aug. 14.
Alabama’s refusal to follow the court order is part of a larger plan. The state’s intransigence has already deprived Black Alabamians of fair representation in Congress. The initial decision striking down the first map was handed down in January 2022. Yet, Alabama’s meritless appeals resulted in the illegal racially discriminatory map being used for the 2022 elections.
All of this might have been different. It should have been different. But Roberts and the Court’s majority were confident that things had changed in places like Alabama, even when they had not. Sadly, it is Black voters, not the Court, who pay the price.
The problem is not just limited to Alabama. In fact, the states causing the most trouble over their congressional maps were, uncoincidentally, all precleared prior to Shelby County.
Shortly after the Alabama map was declared illegal, a different federal court ruled that Louisiana’s congressional map was also racially discriminatory, similarly ordering the state to draw a second majority-Black district. Louisiana also lodged meritless appeals to ensure the illegal map was used in the 2022 midterm elections. And, like Alabama, Louisiana continues to use hardball litigation tactics to try to avoid having to enact a legal, nondiscriminatory congressional map for 2024 and beyond.
Florida, Georgia and Texas are all continuing to use congressional maps that likely violate the civil rights of their residents. They also hope that the slow pace of litigation will permit racially discriminatory maps to be used again in 2024.
South Carolina also faces a redistricting battle in court after a federal court struck down its congressional map earlier this year. According to the court, the state had illegally sorted Black voters based on race in violation of the U.S. Constitution in order to turn a swing district into a safe one for Republicans. Prior Supreme Court precedents support the lower court’s strike down of the map, yet, the state has appealed the decision to the U.S. Supreme Court, hoping that even if it loses, it will have the discriminatory map in place for 2024.
In state after state, Republican-controlled states are using time as a weapon to discriminate against minority voters. Justice delayed is, indeed, justice denied. And we know from Alabama that even when justice is served, states will drag their feet to comply.
When Roberts wrote his opinion in Shelby County, there were mechanisms in place to prevent states from openly defying a court order and there was appetite in Congress to preserve those protections. Remember that just a few years earlier, in 2006, the Senate reauthorized the VRA in a 98-0 vote.
To use Roberts’ words, “things have changed dramatically” since that unanimous vote. Today, Republicans up and down the ballot openly oppose voting rights. Every single House Republican voted against the John R. Lewis Voting Rights Advancement Act, which would have reversed the Shelby County decision and restored preclearance to states, like Alabama, that clearly still need it.
Instead of Republican leaders in Congress voting to reauthorize the VRA and affirming the need for fair maps and voting laws, the current leadership is actively using these states’ discriminatory practices for their political gain. Last week, House Speaker Kevin McCarthy (R-Calif.) called Alabama to urge the state to defy the court’s order for fear that a second majority-Black district could swing control of the House.
As we watch to see what the court does in Alabama, let’s pay just as much attention to states like Florida, Georgia, Louisiana, South Carolina and Texas. Without oversight from the federal government this time around, and without enough time before the 2022 midterm elections, these states ended up with discriminatory maps that shouldn’t have been enacted in the first place.
But thankfully, our democracy is not dictated solely by what legislatures do or do not draw. That’s why we have courts as the last line of defense. So far, the courts have done the right thing in Alabama and Louisiana. Let’s hope that they do the same in other states where discriminatory maps remain on the books.