In the past ten years, the Supreme Court has issued a number of rulings that critics say have gutted the Voting Rights Act – making it harder for communities of color to select candidates of their choice.
But last week, a ruling from the nation’s highest court raised both eyebrows, and the hopes of those challenging redistricting efforts nationwide. The 5-4 decision in a case known as Allen v. Milligan orders Alabama back to the drawing boards, essentially reaffirming a section of the federal statute that prohibits voting practices that discriminate on the basis of race.
David Gans has written about the case for Slate. Gans is the director of the Human Rights, Civil Rights, and Citizenship program at the Constitutional Accountability Center. Listen to the interview above or read the transcript below.
This transcript has been edited lightly for clarity:
Texas Standard: What was your takeaway from the Alabama case? Did you have a sense, as many did, of surprise?
David Gans: I do think this was a surprising voting rights victory. We’ve seen in past years, the Roberts court has gutted the Voting Rights Act. And in this case, they issued a 5-4 ruling that affirmed that the Voting Rights Act protects against voter dilution by states of communities of color. It held that that part of the Voting Rights Act is constitutional and within the powers of Congress, and it struck down Alabama’s maps as discriminatory.
But what was it about Alabama’s congressional maps that even conservative justices seemed to find out worthy of overturning?
The court found that Alabama had diluted the votes of communities of color, particularly in the Black Belt region of Alabama.
Sort of the southwest portion of the state, as I recall.
And under the Voting Rights Act, the state now has to redraw their maps and create a second district in which Black voters form a majority and can elect representatives of their choice, which is a really critical principle at the heart of the Voting Rights Act. And the five-justice majority kind of affirmed what has been the law for four decades – that the Voting Rights Act protects against voter dilution and rejected Alabama’s effort to gut that part of the statute.
The Democratic-led Congress has tried unsuccessfully to resurrect parts of the Voting Rights Act that the Supreme Court’s invalidated in recent years. But you write that the Milligan decision – this Alabama case – gives Congress more tools. How so?
Well, so one of the key things that I think is often not understood about the part of the Voting Rights Act that was at issue in this case, [is] known as the ”results test,” because it targets discriminatory results, not discriminatory intent. That part of the Voting Rights Act came about because the Supreme Court in 1980 issued an incredibly narrow interpretation of the Voting Rights Act that said it only reached discriminatory intent and Congress, in 1982, said that’s too restrictive, and they amended the Voting Rights Act to make clear that the key question is “does a voting practice on the ground deny voters and communities of color political equality in terms of the results, not in terms of the intent?”
And in the Milligan case, the court affirmed Congress had the power to do that. This is kind of a key recognition that when the court guts landmark statutes, Congress is within its power to come back and say, “you’ve misinterpreted the statute. You’ve gotten it wrong. We’re going to correct that interpretation and provide stronger protections.” And so the Milligan case kind of underscores that power, which is critically important, given all the ways the Roberts court has gutted the Voting Rights Act.
I want to talk about the fact that residents of other states, including Texas most notably, have challenged redistricting. And I’m curious what you think this decision in Alabama might mean for those other challenges. And I think a lot of critics had said, “well, you’re not going to have much chance with this court.” What does this ruling mean for the challenges that are currently out there as you see it?
I think Milligan will have implications beyond Alabama. There are a number of cases that were on hold where lower courts had found maps discriminatory. There was a case in Louisiana. There was a case in Georgia that were stayed while the Supreme Court was deciding the Milligan case. And I think the Milligan case provides very strong arguments that in those states as well, legislatures will have to go back to the drawing board and create additional districts in which Black voters can elect candidates of their choice.
In Texas, there are a number of lawsuits pending, and I think the principles that are spelled out in Milligan will be kind of front and center as the courts in those cases consider it. The Texas litigation, as I understand it, is earlier in its proceedings. But I think the fact that the Supreme Court broadly reaffirmed protections against vote dilution will be very important in those cases.