Hyosub Shin/Atlanta Journal-Constitution via AP
Georgia Gov. Brian Kemp speaks during Georgia Chamber Congressional Luncheon on Aug. 8, 2023. Kemp recently called the Georgia legislature back into session to draw new congressional maps in response to a federal judge ruling the existing ones violated the Voting Rights Act.
Last week, U.S. District Court Judge Steve Jones found that Georgia’s state and federal legislative maps crafted after the 2020 census violated the Voting Rights Act. He ruled that the state lawmakers should have created one additional majority-Black congressional district in metro Atlanta and five majority-Black state legislative districts. He ordered a legislative do-over. Gov. Brian Kemp has called lawmakers back for a special session on November 29 to begin that process.
Ruth Bader Ginsburg was right. The late Supreme Court justice warned a decade ago that preclearance, a key federal review tool implemented to put the brakes on discriminatory voting practices, should not be abandoned just yet. “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes,” she wrote in her 2013 Shelby County v. Holder dissent, “is like throwing away your umbrella in a rainstorm because you are not getting wet.”
But in Shelby, the majority did just that, declaring that voting discrimination had ebbed significantly and that federal oversight was no longer required. To the surprise of no one who has been carefully observing the actions of Southern legislatures, some of the states that had been subject to federal preclearance under Section 5 of the Voting Rights Act are now trying to respond to court orders to correct voting maps expressly designed to disadvantage African American voters.
In Shelby, the majority embraced Chief Justice John Roberts’s assertion that “nearly 50 years” since the passage of the Voting Rights Act, “things have changed dramatically.” Indeed, the gross acts of violence that white terrorists used against Black voters who tried to cast a ballot have ended. Today, however, when electoral representation comes into play, white lawmakers use sophisticated mapmaking technologies to move majorities of Black voters into single districts or to spread them among a number of districts to weaken their collective political power, a tactic known as “packing and cracking.”
Now, however, in the aftermath of the Court’s surprising Allen v. Milligan decision earlier this year, which let stand Section 2 of the VRA, which prohibits discriminatory voting practices and procedures, Georgia, Alabama, Louisiana, and South Carolina, four Deep South states that had been subject to preclearance before Shelby invalidated it, have been ordered to come up with fair maps.
It remains to be seen if and when Georgia gets to work on designing maps in keeping with the court’s specific orders. Georgia Secretary of State Brad Raffensperger plans to appeal the ruling. “While Georgia and Alabama are Southern states who both have deeply entrenched race issues, the current leadership in the states differ,” says Alicia Hughes, a visiting assistant professor at the Emory University School of Law.
“We witnessed [Georgia’s] Republican state leadership do the right thing and honor the will of the voters in the 2020 presidential election cycle, and I would expect state leadership to comply with federal law and federal court orders.”
Alabama faced a similar court order to redraw its maps and promptly embarked on an odyssey of delays that featured two attempts to get the Supreme Court to intervene on its behalf. These maneuvers would have delayed the implementation of new, court-ordered maps that would be in play in 2024. Rebuffed by the courts, however, Alabama will have those court-ordered maps in place for next year’s elections, which will increase the number of majority- or near-majority-Black congressional districts from one to two.
“The Supreme Court’s elimination of preclearance in Shelby was a mistake and premised on faulty logic,” says Hughes. “A decade later, America is meeting its maker with continued litigation based on that mistake.” She adds, “When individualized corrective measures on a case-by-case, state-by-state basis are being raised and resolved by calling the hands of racial gerrymanderers in former preclearance states like Alabama, the highest court in the land is being met by state-sanctioned disrespect reflected by open defiance to court orders.”
Alabama finally backed off its delay tactics and has since selected a new map that creates one near-majority-Black district that spans the state from the Mississippi border in the west to the Georgia border in the east and one majority-Black congressional district that builds on the previous district’s configuration. “Alabama probably has been the most blatant in its refusal to try to comply with the law even after the Supreme Court said what the law is,” says Kareem Crayton, the Brennan Center’s senior director for voting and representation.
Four years ago, the high court declared partisan gerrymandering a political matter outside the jurisdiction of the federal courts in Rucho v. Common Cause. Now, some state lawmakers appear to be at work on trying to pass off racial gerrymanders as partisan gerrymanders to cement their statewide majorities and tilt congressional ones in Republicans’ favor while evading the federal courts.
Because there are clear legal standards that have been adopted in cases of racial discrimination, as has not been the case in partisan matters, says Crayton, “the court has been more willing to say, well, we think a particular map is a problem, but not necessarily because of its partisan implications, but instead because of racial discrimination implications. So we’re going to make a ruling based upon that.”
The Supreme Court emboldened state lawmakers to pick up where they left off, whittling away at voting rights for African Americans and other people of color.
Underlining how the elimination of preclearance has complicated matters, North Carolina has jumped into a major fight over partisan gerrymandering after its elected state supreme court moved from a Democratic majority to a Republican majority after the 2022 elections. Following that shift, the Republican legislature proceeded to draw new maps designed to advantage the GOP, creating a congressional delegation that could see as many as 11 Republicans and just three Democrats in a state that had been trending purple. Democratic Gov. Roy Cooper, who cannot veto the maps, has promised a court challenge, citing the VRA standard established in Allen v. Milligan. The question may rest on what the courts decide should happen when Democratic voters who are Black and had been grouped more equitably under the former North Carolina maps are split up into new districts under GOP redesigns—especially since the Supreme Court has decided that if partisan gerrymandering is the question, the federal courts are not the answer.
Louisiana has a larger percentage of Black voters than Alabama and could also see one additional majority-Black congressional district. But like Alabama, Louisiana has been working overtime to delay new maps. The latest move in the complex case saw the conservative Fifth Circuit Court of Appeals, which Esquire has called “the blown fuse of American jurisprudence,” cancel a hearing that would have worked toward getting new congressional maps in place.
In Florida, Gov. Ron DeSantis helped disappear a congressional district that had a near majority of Black voters and promptly drew legal scrutiny as well. A federal judge ruled that the district map that the state lawmakers approved discriminated against Black voters in northern Florida. The state has appealed the ruling.
South Carolina is also testing the race-partisan boundary line in a case that is now before the Supreme Court. State lawmakers asserted that they moved more than 30,000 Black voters out of the First Congressional District into another to preserve Republican advantages in the First. The NAACP argued that race was the motivating factor in the design of the district. The federal court sided with the NAACP and ruled that the district was a racial gerrymander and cautioned the state may not use “partisanship as a proxy for race.” The Supreme Court heard oral arguments in Alexander v. South Carolina State Conference of the NAACP in mid-October.
How badly did Shelby overestimate the country’s progress on voting rights for people of color? “At the very least, the Supreme Court was premature in concluding that there was no longer a need for Section 5 preclearance,” says Stuart Naifeh, manager of the Legal Defense Fund’s Redistricting Project, which has been involved in litigation in Alabama, Louisiana, and South Carolina. “The cases pretty clearly indicate that there is an ongoing problem of discrimination against voters of color primarily in the formerly covered jurisdictions, although not exclusively. Section 5 certainly would have made it so that a lot of these maps never got passed in the first place.”
What becomes clearer as new complaints against voting maps stack up in the federal courts is that the Supreme Court emboldened state lawmakers to pick up where they left off, whittling away at voting rights for African Americans and other people of color. As these cases edge into 2024, the great danger is that the court-ordered resolutions unfold in the country’s poisonous electoral climate—and possibly, that the court orders won’t take effect before next year’s critically important elections. Georgia lawmakers have a December 8 deadline. The South Carolina defendants and plaintiffs in Alexander have asked the Supreme Court for a ruling by January 1.
