Edward Blum, a visiting fellow at the American Enterprise Institute, is the president of the Project on Fair Representation, which provided counsel to the petitioners in Shelby County v. Holder and Evenwel v. Abbott.

…[In] a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution….
Alexander Hamilton, writing The Federalist No. 78

…I practiced the law, I practic’ly perfected it
I’ve seen injustice in the world and I’ve corrected it…
Alexander Hamilton, rapping in the musical Hamilton

Justice Antonin Scalia’s successor could reaffirm, or significantly reshape, our nation’s jurisprudence in a handful of critical areas, but none as profoundly important as voting rights. For the last twenty-five years, the Court, in a number of landmark cases, has restored the equal sovereignty of the states (Shelby County v. Holder), narrowed the use of race in redistricting (Bush v. Vera and Shaw v. Reno), and avoided the morass of partisan gerrymandering (Vieth v. Jubelirer) – results that most conservatives and libertarians have applauded. However, should Scalia’s replacement join with the current four-Justice liberal bloc in future cases involving these controversies, voting rights jurisprudence in the coming years would be dramatically different.

For now, Scalia’s replacement may confront two flashpoints: a new coverage formula for Section 5 of the Voting Rights Act and the 2020 round of reapportionment and redistricting.

A new voting rights act?

In 2013, the Court struck down Section 4 of the Voting Rights Act in Shelby County v. Holder. The immediate reaction to Shelby County from left-leaning organizations and politicians was bitter and emotional. Representative John Lewis (D-Ga.), an icon of the civil rights movement during the 1960s, called it a dagger in the heart of voting access for minorities. Then just hours after the Court issued the opinion, President Barack Obama called on Congress to pass new legislation to restore the one just struck down. As of today, there are two new bills pending in Congress that are essentially on hold because of Republican opposition.

In the event both chambers of Congress, with the support of the new president, pass a newly reconfigured VRA, the constitutionality of these statutes is very likely to come back to the Court. If the new Justice analyzes the current state of minority electoral opportunity in the United States as did Scalia, the new statute probably won’t survive constitutionality. Because of this possibility, let’s briefly examine the provisions of the VRA that were struck down in Shelby County as well as the proposed legislation.

In 2006, Congress reauthorized Sections 4 and 5 of the Voting Rights Act for twenty-five years. Both of these provisions had last been reauthorized in 1982. Known widely as the “trigger mechanism,” Section 4 of the VRA swept under federal oversight any state or county that in 1964 had used a voting test or device, such as a literacy test, and in which less than fifty percent of the voting-age population was registered to vote. Congress was targeting the Deep South – the area of the country most egregiously disenfranchising blacks. Once this formula identified offending jurisdictions, Section 5 of the act then forbade them from enacting any change to voting standards, practices, or procedures without the consent of the federal government. This “preclearance” procedure was successful, essentially ending black disenfranchisement in the South.

Shelby County, in turn, effectively put an end to preclearance. Yet, the case did not confront the constitutionality of Section 5. Instead, in a five-four opinion authored by Chief Justice John Roberts, the Court asserted that the conditions in the covered states that led to the VRA’s enactment had “changed dramatically” and offered minorities electoral opportunities mostly on par with those of whites. Hence, the coverage formula of Section 4 was declared unconstitutional.

Today, there are two bills pending in Congress to update and modernize the coverage formula. Representatives James Sensenbrenner (R-Wis.) and John Conyers (D-Mich.) introduced the Voting Rights Amendment Act of 2015; and Senators Patrick Leahy, Dick Durbin, and Sherrod Brown, among others, introduced the Voting Rights Advancement Act of 2015. At the heart of both is a coverage formula that targets states with fifteen or more voting rights violations during the past twenty-five years. The “look-back” period gets reduced to ten years if one of the violators was the state itself. If enacted, the bill would initially cover over a dozen states including California, Texas, Florida, New York, and most of the Deep South.

A conservative-leaning Justice may regard this blueprint as overly broad and not within a reasonable time period to target bad actors. Furthermore, the multiplicity of voting jurisdictions complicates matters. In Texas, for example, there are many thousands of counties, cities, school districts, municipal utility districts, and so forth, that hold elections. A conservative Justice may find it to be constitutionally incongruent to require, for instance, the Austin Independent School District to submit election changes to the federal government simply because of few bad actors elsewhere in the state.

Redistricting 2020: “One person, one vote” and racial gerrymandering

Redistricting is a zero-sum game in a polarized political environment, so it is of little surprise that an increasing number of legal battles over election district lines land at the Supreme Court. Scalia’s successor is likely to be confronted with two unresolved and evolving legal issues after (or perhaps during) the 2020 round of redistricting. First, how much racial and ethnic consideration in constructing voting districts is too much? And second, may states and jurisdictions use some metric of eligible voters instead of total population to construct voting districts? Let’s address them in reverse order.

Last Term, the Court decided Evenwel v. Abbott, a challenge to the constitutionality of the most recent Texas Senate redistricting plan. The petitioners were two Texas voters who reside in state senate districts that, while having the same number of individuals as every other senate district, have significantly more eligible voters than many other districts. By some metrics, the deviation between the petitioners’ districts and the district with the fewest eligible voters was about forty-nine percent. In effect, some votes in the Senate election were worth approximately one and one-half that of the petitioners’ votes. The plan was, they argued, a violation of the principle of “one person, one vote.”

As many Court observers noted when the case was taken for argument, throughout all of the years that “one person, one vote” has been enshrined in constitutional law, the “person” in “one person” had never been defined. The petitioners argued that the “person,” for all intents and purposes, ultimately must always be eligible voters, a proposition the Justices rejected unanimously with Justice Ruth Bader Ginsburg writing for the Court. However, the Court stopped short of requiring that states and jurisdictions exclusively use total population as the Obama administration has advocated. Instead, for now, its ruling left the redistricting population metric up to the states and jurisdictions. In the event a state decides to use a population metric other than total population, the Court will then face that question.

Looking out to 2020, a few states and jurisdictions might decide to use eligible voters as their redistricting metric, which, in all likelihood, would be challenged in court. In an important separate concurrence, Justice Samuel Alito (joined in part by Justice Clarence Thomas) highlighted to the lower courts and redistricting bodies that the question was unresolved:

Whether a state is permitted to use some measure other than total population is an important and sensitive question that we can consider if and when we have before us a state districting plan that, unlike the current Texas plan, uses something other than total population as the basis for equalizing the size of districts. . . . For centuries, political theorists have debated the proper role of representatives, and political scientists have studied the conduct of legislators and the interests that they actually advance.

Scalia’s replacement may be compelled to decide these issues after new state legislative lines are finalized in 2021. Furthermore, it is reasonable to speculate that a conservative appointment would defer to the states which population base, or combination of population bases, to choose.

Finally, the new Justice is sure to confront the issue of race in redistricting, or more precisely, the issue of race and partisanship, a preview of which was a key question in Alabama Legislative Black Caucus v. Alabama. There, the Alabama legislature constructed majority-minority districts that packed African-American voters into ultra-safe Democratic districts using race as the “predominant” factor in the redistricting plan, which, as usual, resulted in GOP successes in the surrounding districts. Using race in this manner can fall afoul of the Court’s long line of cases beginning with Shaw v. Reno.

Because of suburban population growth and the ongoing shrinking of minority inner-city neighborhoods since Shaw, the difficulty of how a redistricting body disentangles race and partisanship has grown each cycle. After all, a solid majority of African Americans in the country are Democrats, while in states such as Alabama, Texas, and Georgia, to name a just a few, a majority of whites are Republicans. Whereas compliance with Section 5 of the Voting Rights Act can no longer be the excuse redistricting bodies give for this kind of “packing” (unless, of course, a new coverage formula is in place), other provisions of the VRA – specifically, Section 2 – can compel them to do the same. The tension between Section 2 of the VRA and Shaw will be manifest in the new round of redistricting.

It is difficult to speculate how a conservative-leaning Justice will address these future racial gerrymandering cases since each one will be factually distinct. Nonetheless, a new conservative-leaning Justice may, like Justice Anthony Kennedy did in an earlier voting rights case (Chisom v. Roemer), express skepticism about the constitutionality of Section 2 as it is applied in some instances.

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Ignoring the warnings of Justice Felix Frankfurter nearly sixty years ago in Colegrove v. Green, the Supreme Court has deeply immersed itself – and the nation – into the “political thicket” of voting rights. This is unfortunate. Voting rights, like no other area of the law, has cast the Court as merely another branch of government, with the Justices playing out “red” and “blue” roles, just like senators and representatives on Capitol Hill. Alexander Hamilton’s supposition about the “least dangerous branch” hasn’t worked out as planned. And whoever replaces Scalia will be thrown into the political thicket with the rest of them.

Posted in Featured, The Court after Scalia

Recommended Citation: Edward Blum, The Court after Scalia: The future of voting rights, SCOTUSblog (Aug. 30, 2016, 4:25 PM), https://www.scotusblog.com/2016/08/the-court-after-scalia-the-future-of-voting-rights/