Is Justice Alito jumping the gun on voting rights?

Cases and Controversies is a recurring series by Carolyn Shapiro, primarily focusing on the effects of the Supreme Court’s rulings, opinions, and procedures on the law, on other institutions, and on our constitutional democracy more generally.

In October, the Supreme Court heard oral argument in 10 cases. It has now decided eight of them. Louisiana v. Callais is one of the remaining cases, and one possible outcome of that case is that the Supreme Court will declare section 2 of the Voting Rights Act unconstitutional (or severely limit its effectiveness) as applied to vote dilution in redistricting. Justice Samuel Alito’s solo concurring opinion in Malliotakis v. Williams, issued Monday, March 2, suggests that he is either forecasting or trying to corral the votes for just that outcome.

Under section 2 of the VRA, impermissible vote dilution occurs when “based on the totality of circumstances,” the way district lines are drawn or the way an at-large voting system operates effectively provide minority voters with “less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” Imagine, for example, a city council with five members all elected at-large from a city that is 40% minority and 60% white. If there is racially polarized voting – that is, if white and minority voters tend to prefer different candidates – then all five city council members will be white-preferred candidates. If the city were divided into five single-member districts, on the other hand, depending on housing patterns and on how the districts were drawn, one or more of the city council members could be minority-preferred candidates. So it is possible that the at-large voting system dilutes minority votes and violates section 2.

That example is dramatically oversimplified, of course. Actual vote dilution claims generally include extensive expert reports and testimony to establish not only racially polarized voting and whether the minority population is compact enough to constitute a majority-minority district, but also a host of factors related to current and historical racial discrimination. Notably, however, section 2 does not require the plaintiffs to show intentional discrimination, and as recently as 2023, in Allen v. Milligan, the Supreme Court upheld a lower court judgment that the congressional districts in Alabama diluted African-American votes and violated section 2. (Disclosure: I filed an amicus brief in that case on behalf of several members of Congress and in support of the plaintiffs.)

Compliance with section 2 obviously requires consideration of race in the redistricting process. And the Supreme Court has also said that where racial considerations “predominate” over traditional districting criteria, a map may be subject to strict scrutiny (that is, heightened review) under the equal protection clause. There is tension between the two doctrines, but the court has long reconciled them by assuming without deciding that compliance with Section 2 is a compelling government interest necessary to meet the strict scrutiny standard. (Strict scrutiny has other requirements; a jurisdiction does not automatically prevail in a racial gerrymandering challenge by claiming to be complying with section 2.)

Malliotakis is not a VRA case. Instead, it involves Article III Section 4(c)(1) of New York’s constitution, which is similar but not identical to section 2 of the VRA. The state trial court was the first to interpret the state constitutional provision and it concluded that the New York constitution provides “broader” protection of minority voting rights than does the VRA. It ordered the state’s independent redistricting commission to redraw the lines of a particular congressional district because, as drawn, the district diluted minority votes under the standards it announced that the New York Constitution demanded.

The Supreme Court paused the district court’s order with no explanation. In a solo concurrence, however, Alito described the state trial court as requiring the redrawn district “for the express purpose of ensuring that ‘minority voters’ are able to elect the candidate of their choice.” So he echoed some of the language of section 2 prohibiting voting systems that give minority voters “less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” He then described that purpose as “unadorned racial discrimination, an inherently ‘odious’ activity that violates the … Equal Protection Clause except in the ‘most extraordinary case.’” He made no effort to explain how the state trial court’s standard is different from or more constitutionally problematic than section 2 itself. (They are not in fact identical.)

But Alito has equated the VRA with the most odious forms of political racism in the past. In Alexander v. South Carolina Conference of the NAACP, the justice, for the court, wrote an opinion reversing a district court’s findings that the South Carolina legislature had intentionally discriminated against African-American voters in its redistricting. The three-judge district court erred, he said, by not providing an adequate presumption of “legislative good faith,” in particular in a case where the defense was that the legislature was trying to maximize partisan benefit and the evidence of intentional racial discrimination was circumstantial. Describing what kind of evidence might be sufficient to overcome the presumption of good faith, he pointed to a “state actor’s express acknowledgment that race played a role in the drawing of district lines.” This type of evidence is “not uncommon,” he explained, “because States often admit to considering race for the purpose of satisfying” the VRA.

Under this approach, a racially skewed map appears to be entitled to a presumption of good faith even in the most racially polarized voting environment as long as the legislators insist that they are maximizing partisanship and don’t mention race. But taking race into account to comply with the VRA, “the crown jewel of the civil rights era,” is legally equivalent to deliberately excluding Black people from political participation. Indeed, in Malliotakis, Alito implicitly rejected the notion that compliance with the VRA to remedy racial vote dilution was a compelling interest. Instead, citing the recent affirmative action decision, he added that “our precedents have identified only two compelling interests that can justify race-based government action: (1) mitigating prison-specific risks and (2) ‘remediating specific, identified instances of past discrimination that violated the Constitution or a statute.’” This vision of how the 14th and 15th Amendments operate turns those provisions on their heads. It rewards conduct that undermines minority political participation as long as certain words remain unspoken, while deeming unconstitutional deliberate attempts to protect that participation.

It would not be surprising if the Supreme Court, in Louisiana v. Callais, makes all this explicit. The Roberts court has been extraordinarily hostile to minority voting rights in general, and it has been steadily eviscerating the VRA. Nor would it be surprising if Alito is writing the opinion. Among other things, Alito is one of only two justices who have not yet issued majority opinions from the October session, when the case was argued. And he has authored several majority opinions in the VRA-evisceration campaign, such as Alexander and Brnovich v. Democratic National Committee. (Brnovich limited section 2’s application to time, place, and manner regulations, such as burdensome restrictions on mail-in voting, even where those restrictions have a disparate impact on minority voters.)

But the court has not yet held what Alito seems to be implying in Malliotakis. I can think of a couple of possible reasons for him to jump the gun. One is that he knows that the court is about to say what he is forecasting, and he does not trust the state courts to apply such a holding in this case. But that would explain the stay itself, even if it would not justify it, and may indeed help explain the majority’s actions. It does not explain what he wrote.

A second possibility, however, that does explain the opinion, is that Alito wants to lock in a holding that he may not have full agreement on. The leak of the opinion in Dobbs v. Jackson Women’s Health Organization reportedly short-circuited efforts by the chief justice to negotiate a less extreme outcome than complete elimination of the right to abortion. Perhaps Alito hopes that by publicly declaring the law to be what he wants, he will assure that it will be so.