On Wednesday, the U.S. Supreme Court heard arguments against Section 2 of the Voting Rights Act in a lawsuit filed by Black Louisiana voters. The group sued the state after it created a congressional map with only one Black-majority district despite about one-third of the state’s population being Black.
The court case has significant ramifications for how lawmakers draw congressional maps, especially as many states are pushing for mid-decade redistricting.
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What is Section 2?
Section 2 prohibits voting practices that discriminate based on race, color or membership in a language minority group. This nationwide prohibition prevents any voting standard, practice, or procedure from denying or abridging a citizen’s right to vote based on race, color, or membership in a language minority group.
Originally, people needed to prove there was an intent to discriminate. However, the Supreme Court in 1980 held that anyone seeking relief needed to prove the claimed curtailing of voting rights was because of racial bias.
Two years later, Congress amended Section 2 to create a “results” test. That test prohibits any voting law that has a discriminatory effect, regardless of discriminatory intent in its enactment or maintenance.
This allowed people to no longer have to prove racist intent, only discriminatory results.
To prove if something violates Section 2, plaintiffs must show three preconditions:
- The affected minority group is large and condensed enough to elect a representative of their choice.
- The minority group typically votes in a similar manner.
- White majority voters typically vote as a bloc, defeating minority-preferred candidates.
How could this impact the country?
If the Supreme Court overturns Section 2, experts say it could disenfranchise minority voters. It could allow Republican-controlled states to redraw at least 19 more voting districts for the House of Representatives that favor Republicans, according to voting rights groups.
Other estimates say as much as 30% of the Congressional Black Caucus and 11% of the Congressional Hispanic Caucus could be lost. Both the CBC and the CHC currently consist entirely of Democrats. Several Black Republicans have declined to join the CBC over political differences. The CHC has denied admission of two Hispanic Republicans since 2017.
Section 2 is also used to change state maps, which means that local offices, including town councils and school boards, would be impacted.
Experts say that without Section 2, states could use “cracking” and “packing” to dilute minority voting power. Cracking involves spreading minority voters across multiple districts, making it harder to form a majority in any single district. Packing is the opposite, involving concentrating as many minority voters into one or a small number of districts.
However, Republicans say Section 2 is unconstitutional even if lawmakers created it to remedy racial discrimination. Louisiana Attorney General Liz Murrill said that it rests on a racial stereotype that all Black voters are the same.
“Race-based redistricting under Section 2 is principally unconstitutional because it inherently rests on a racial stereotype: that all voters of a particular race must — by virtue of their membership in their racial class — think alike, share the same interests, and prefer the same political candidates,” she wrote in a brief she filed with the Supreme Court.
What happened during arguments?
During Wednesday’s arguments, the court’s three liberal justices, Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson, all spoke about the effects Section 2 has had on the country.
Sotomayor pushed back against Louisiana’s arguments and stressed that lawmakers have traditionally used race when redrawing maps.
“Race is always a part of these decisions, and my colleagues are trying to tease it out in this intellectual way that doesn’t deal with the fact that race is used to help people,” Sotomayor said.
Kagan asked NAACP lawyer Janai Nelson what would happen if the court struck down Section 2.
“I think the results would be pretty catastrophic,” Nelson responded. “We only have the diversity that we see across the South, for example, because of litigation that forced the creation of opportunity districts under the Voting Rights Act.”
Chief Justice John Roberts and Justice Brent Kavanaugh are seen more as swing votes in this debate. The two previously upheld Section 2 when Alabama looked to create only one Black majority district, despite the state having nearly a quarter Black population. Alabama currently has seven congressional districts.
However, during arguments, both raised questions that showed skepticism about creating a map with two Black-majority districts. Kavanaugh twice brought up an end point for Section 2. He argued that these “race-based remedies” are allowed only for a period of time.
“The issue, as you know, is that this court’s cases, in a variety of contexts, has said that race-based remedies are permissible for a period of time … but that they should not be indefinite and should have an end point,” he said.
Kavanaugh also said that using race for drawing districts puts the nation on a “most dangerous course.”
How have previous courts ruled?
Several courts have already heard this case over the last few years. Hearings on this case started in 2022. Two years later, Louisiana lawmakers drew a new map creating a second majority-Black district after the Fifth Circuit Court agreed with the Black voters.
A group of voters identifying as “non-African American” subsequently filed a lawsuit, alleging the 2024 map created by lawmakers was unconstitutional. A district court agreed.
The Supreme Court later stayed the 2024 map, allowing it to be used in that year’s election. In March, the court originally heard arguments about the 2024 map. However, in June, the court ordered a second oral argument.
In August, Murrill filed a brief abandoning their defense of the 2024 map and instead arguing that race-based redistricting is unconstitutional.
