Chief Justice John Roberts famously wrote in a 2007 case: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” 

He was exactly right in saying so in that Supreme Court decision in Parents Involved in Community Schools v. Seattle School District No. 1.

Too bad Roberts didn’t follow his own admonition in Allen v. Milligan, the Alabama redistricting decision released last week by the Supreme Court. 

In it, Roberts joined with the high court’s three liberal justices and, unfortunately, Justice Brett Kavanaugh to uphold the mistaken finding of a lower federal court. The lower court had decided that challengers to Alabama’s 2022 congressional redistricting plan were likely to succeed in their claim that the plan was discriminatory and violated a provision of the Voting Rights Act.

Of the state’s seven congressional districts, one has been a majority/minority district where black voters could elect their candidate of choice since 1992, when a federal court imposed that requirement in another lawsuit filed under the Voting Rights Act. Since then, Alabama legislators have maintained that single district’s boundaries after each subsequent census, including the 2020 census, with only marginal changes.

The challengers, who include the NAACP, sued over the 2022 plan that maintained the boundaries of that one congressional district. They claimed that changes in the state’s population entitled black voters to two majority/minority districts under Section 2 of the Voting Rights Act, which prohibits “the denial or abridgment of the right to vote of any citizen” based on race or color. 

A three-judge panel of the lower court found that Alabama’s 2022 redistricting plan likely violated Section 2 and issued a preliminary injunction enjoining the use of the plan in the upcoming congressional election. 

Roberts wrote the majority opinion in the Supreme Court decision issued Thursday, claiming that more than enough evidence in the record supported the lower court’s finding. The chief justice was mistaken.

As Justice Clarence Thomas pointed out in his dissent—joined by Justices Neil Gorsuch, Amy Coney Barrett, and Samuel Alito—the only real basis for the lower court’s decision concluding that the redistricting plan diluted blacks’ votes was because “it is possible to draw two majority-black districts” in Alabama (emphasis in the original). 

But the critical question, Thomas wrote, is whether votes are diluted compared to what benchmark. The text of Section 2 “and the logic of vote-dilution claims require a meaningfully race-neutral benchmark, and no race-neutral benchmark can justify” the lower court’s finding of vote dilution, he wrote.

In fact, Thomas wrote, the “only benchmark that can justify’’ the ruling, and the one applied by the lower court, “is the decidedly nonneutral benchmark of proportional allocation of political power based on race.” 

In other words, because blacks constitute about a quarter of Alabama’s population, the lower court concluded that they are entitled to two of the seven congressional seats allocated to the state.

Two major problems accompany that reasoning, problems that the lower court ignored, and Roberts’ opinion essentially glossed over.

The first problem is that the Voting Rights Act specifically warns in Section 2 that nothing in the statute “establishes a right to have members of a protected class elected in numbers equal to their proportion of the population.” Yet that is exactly what the lower court did.

Second, as Thomas again points out, the Supreme Court’s prior precedents, including Shaw v. Reno (1993), have held that when race is the predominant factor used to draw boundary lines to separate voters into different districts based on race, that is a prohibited violation of the Equal Protection Clause of the 14th Amendment to the Constitution.  

Thomas castigated the majority, concluding that this decision is “yet another installment in the disastrous misadventure of this court’s voting rights jurisprudence” that lays “bare the gulf between our ‘color-blind’ Constitution … and the consciously segregated districting system being constructed in the name of the Voting Rights Act.” 

The question presented in this case, Thomas wrote, is whether Section 2 requires Alabama “to intentionally redraw its longstanding congressional districts so that black voters can control a number of seats roughly proportional to the black share” of the state’s population. 

As Thomas declares, “Section 2 demands no such thing, and, if it did, the Constitution would not permit it.”

Moreover, he said, “nothing in Alabama’s geography or demography makes” the racial redistricting plans proposed by the challengers “the best way, or even a particularly attractive way, to draw” congressional districts. 

Thomas wrote that Alabama has “obvious legitimate, race-neutral reasons to prefer its own map—notably, its interest in ‘preserving the cores of prior districts’ and the Gulf Coast community of interest” in one specific district that the challengers’ proposed redistricting map would break up.

Alito also filed a separate dissent, joined by Gorsuch, severely criticizing the high court’s majority in this case.

Alito pointed to “conspicuous violations of traditional districting criteria” by the challengers to Alabama’s plan, criteria such as compactness and contiguousness, which “constitute strong circumstantial evidence of unconstitutionality” (emphasis in original). And it is “direct evidence of illegality” when, as here, “it is shown that the configuration of a district is attributable predominantly to race” (emphasis in original).

Alito concluded that the majority’s opinion is “inconsistent with the text of [Section] 2, our precedents on racial predominance, and the fundamental principle that states are almost always prohibited from basing decisions on race.” 

The majority’s decision, warned Alito, “unnecessarily sets the [Voting Rights Act] on a perilous and unfortunate path.”

Alito is right in that assessment. As a result of this flawed opinion, we will see race become an even more dominant and contentious feature in the redistricting process.

We should be moving away from that type of irresponsible behavior, not approving and encouraging it.

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