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Conservative Supreme Court justices consider making it easier to defend against racial gerrymandering claims

Liberal justices led by the new member, Ketanji Brown Jackson, were outspoken in defending protections in the landmark Voting Rights Act.
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Conservative Supreme Court justices on Tuesday probed whether to weaken the landmark Voting Rights Act, enacted to protect minority voters, as the high court considered a dispute over Alabama's congressional district map.

Alabama’s Republican attorney general, Steve Marshall, is asking the court, which has a 6-3 conservative majority, to unravel decades of precedent about how to remedy concerns that the power of Black voters is being diluted by dividing voters into districts where white voters dominate.

Although members of the conservative majority did not appear sympathetic to Alabama's broader arguments, some did indicate a willingness to make it harder for groups to overcome an early hurdle to bringing such claims. That would give states more leeway to argue that additional districts where minority voters could elect the candidates of their choice do not need to be drawn just because plaintiffs are able to show it is possible to do so out of thousands of computer-generated options, some of which include race as a criterion. States could have better chances to fend off lawsuits if they could show they adhered to race-neutral criteria in drawing their maps.

Liberal justices led by the court's newest member, Ketanji Brown Jackson, were outspoken in defending the current law.

Jackson questioned Alabama's insistence on a race-neutral approach, noting that the Constitution's 14th Amendment, enacted after the Civil War, was aimed at ensuring that formerly enslaved Black people obtained equal treatment under the law.

"That's not a race-neutral or race-blind idea," she said.

The two consolidated cases heard Tuesday arise from litigation over the new congressional district map the Republican-controlled Alabama Legislature drew after the 2020 census. The challengers, including individual voters and the Alabama State Conference of the NAACP, say the map violated Section 2 of the 1965 voting rights law by discriminating against Black voters. The new map created one district out of seven in which Black voters would likely be able to elect a candidate of their choosing. The challengers say the state, whose population is more than a quarter Black, should have two such districts and provided evidence that such a district could be drawn.

A lower court agreed in January, saying that under Supreme Court precedent, the plaintiffs had shown that there should be a second majority-Black district.

Liberal Justice Elena Kagan said the lower court's handling of the case was correct and questioned why the Supreme Court was intervening.

"Under our precedents, it's kind of a slam dunk," she said.

But several conservative justices seemed open to the idea of tweaking the way such cases are litigated under a test the Supreme Court first laid out in a 1986 case called Thornburg v. Gingles. The court said then that plaintiffs had to show that the minority population was both large enough and sufficiently compact for a new district to be drawn. Conservative Justice Samuel Alito was among those who focused on Supreme Court precedent, saying new districts have to be "reasonably configured." Alito said such a map "would be drawn by an unbiased mapmaker." Reinterpreting the 1986 ruling in that way could enable the state to win.

Fellow conservatives Amy Coney Barrett and Brett Kavanaugh also asked lawyers on both sides about the same language.

The case had already reached the justices once in February when they divided 5-4 in allowing the new map to be used, with conservative Chief Justice John Roberts joining the court’s three liberals in dissent. That decision could foreshadow what the court ends up doing.

The state argues that the lower court put too much emphasis on race in reaching its conclusions. Marshall says in court papers that the fact that the challengers were able to show that it was possible to draw a second majority-Black district was not sufficient evidence that the state's actions were discriminatory. He cites other traditional “race-neutral” map-drawing factors that take such issues as regional culture and identity into account, as well as the requirement that districts have similarly sized populations.

The Supreme Court has already weakened the Voting Rights Act in two cases over the last decade, beginning in 2013, when it gutted a key provision of the law that allowed for federal oversight of election law changes in certain states. Last year, in a case from Arizona, the court made it more difficult to bring cases under Section 2.

The case is one of three the court is hearing in the current term in which conservative lawyers are pushing what they call race-neutral arguments favored on the right as a way to remedy race discrimination. In the others, the court will weigh whether to end affirmative action in college admissions and consider striking down part of a law that gives preference to Native American families seeking to adopt Native American children.

CORRECTION (Oct. 4, 2022, 12:47 p.m. ET): An earlier version of this article misstated the ideological makeup of the Supreme Court in describing its vote to allow Alabama’s congressional map. It has three liberal justices, not four.