After a decade of dismantling the Voting Rights Act, the Supreme Court gives it an unexpected boost. ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌

[link removed]

Over the past decade, as I recount in my book The Supermajority: How the Supreme Court Divided America

[link removed]

, the Supreme Court has aggressively dismantled the Voting Rights Act, one of the nation’s most effective civil rights laws. So I was gobsmacked last week when the Court upheld the use of the law to combat a racially discriminatory congressional map in Alabama. Even more surprising, Chief Justice John Roberts wrote the opinion. (Going after the law’s Section 2 has been a career-long passion for him.) What will this mean for representation going forward? I asked Kareem Crayton, the Brennan Center’s senior director for voting and representation, to give us his insights.

—Michael Waldman

The Supreme Court delivered a surprise last Thursday to many of us in the voting rights and redistricting communities with its decision in Allen v. Milligan, which affirmed that the Voting Rights Act remains an active tool for civil rights enforcement. The law has been described at times as super-legislation because of its bipartisan pedigree and its effectiveness in bringing long-awaited, fundamental change for voters of color in our political system. Despite the Court’s recent rulings showing decided hostility to other federal tools to protect equal representation — by effectively ending the special oversight provisions of the Voting Rights Act and by refusing to regulate partisan gerrymandering — Milligan cut against the grain. The Court found that the State of Alabama had violated federal law by underrepresenting Black voters in its 2021 Congressional district map.

Black voters are about a quarter of Alabama’s voting age population, and a straightforward application of Section 2 (which assures to voters an equal opportunity to elect candidates of choice) would mean that two of Alabama’s seven districts should reflect that community’s preferences for political candidates. But the state legislature enacted a map with just one of seven districts with a Black majority — the basic configuration the state had also used in 2020. The map illustrates a classic case of “vote dilution,” in which a community’s ability to use political power is limited due to district lines.

The above is not simply a statement of the governing law — it’s an assessment based on my personal experience. I am a native of Montgomery, a member of Alabama’s bar, and I served as counsel to the Democrats in the legislature through Alabama’s two most recent redrawing efforts. (The last time was to remedy a different constitutional violation back in 2017.) This time around, the Republican supermajority insisted that they understood the law and even invited lawsuits to test the matter, perhaps believing the Roberts Court would extend its pattern of cutting back on voting rights enforcement.

But siding with Black voters who challenged this map, the Court ordered that a second district was justified in light of the size of the Black population and the prolonged patterns of racially polarized voting in the state. The surprising part of this decision was the Court’s strong embrace of the history behind Congress’s passage of Section 2 along with four decades of well-established judicial interpretation of the law.

The Roberts Court appeared poised to issue a final blow to what was left of the Voting Rights Act, yet this decision represents the Supreme Court’s first formal endorsement of a vote dilution claim since 2006. While this decision means that Alabama and other states in the Black Belt (Louisiana and Georgia have analogous pending cases) will soon be drawing new district maps to improve representational opportunities for Black voters, this welcome news is also tempered by two stark realities.

First, Black voters will have endured a full congressional term waiting on the Court to finally strike down a patently illegal map — because of the Court’s use of the “shadow docket,” they had to vote in illegal districts that they knew were underrepresenting them. The second point is just as sobering. Section 2 remains on the books, but the provision emerges in a severely weakened state — and not out of danger. Over the last 10 years, the Roberts Court has taken a newly renewed Voting Rights Act that was on the march and left it an anemic tool whose future carries uncertainty. For example, a pending case about whether civil rights advocates have a right to sue under Section 2 threatens to rob Black voters of pursuing claims on their own.

But for now, a win is a win, and there is good reason to celebrate the promise of improved political representation for communities in the Deep South, where the need for federal protection is most pronounced.





How AI Could Endanger Democracy

The widespread adoption of cutting-edge, low-cost artificial intelligence tools heralds a new era in elections. Chatbots and deepfake image, audio, and video generators could fuel the rampant spread of disinformation and create new hazards in the upcoming election cycle. “AI has the potential to dramatically change elections and threaten democracy. A whole-of-society response is needed,” Mekela Panditharatne and Noah Giansiracusa write. Read more

[link removed]

Gender Equality Under State Constitutions

In overturning Roe v. Wade, the Supreme Court adopted a blinkered view of how abortion bans impact women’s equal citizenship. But the Court isn’t the last word on how other jurists will interpret reproductive autonomy and broader issues of gender equality. A new resource from the Center for Reproductive Rights allows readers to see how each of the 50 state high courts have defined the scope of their state constitution’s protections against sex discrimination — and how they can lead the way in creating modern gender equality jurisprudence. READ MORE

[link removed]

The Fight over American Surveillance

Section 702 of the Foreign Intelligence Surveillance Act is meant to allow the government to surveil foreign threats abroad, but overwhelming evidence shows it’s being used to spy on Americans. With the authority scheduled to expire in December, lawmakers can seize this opportunity to reform Section 702 and better protect civil liberties from abuse. “If Congress intends to rein in warrantless spying on Americans, it will need to rethink surveillance more broadly,” Elizabeth Goitein writes in Foreign Affairs. Read more

[link removed]

Curbing Unjust Sentencing Practices

A shocking feature of our criminal justice system is that people can serve prison time for charges they were found not guilty of. The federal government has recently refused to rein in this practice, but several state supreme courts have held that it violates jury trial and due process rights under their state constitutions. “The path to fairer sentencing, it seems, starts with the states,” MacArthur Justice Center’s Kathrina Szymborski Wolfkot writes in State Court Report. READ MORE

[link removed]





Coming Up

VIRTUAL EVENT: The Supermajority

Wednesday, June 21, 1–2 p.m. ET



Today's Supreme Court is the most extreme in decades. Nine unelected justices hold lifetime seats with great power and, driven by the majority’s originalist ideals, they are rapidly upending American life as we know it. Join us for a virtual event with Michael Waldman and moderator Kareem Crayton, Brennan Center senior director for voting and representation, for expert analysis on the threat the current Court poses and what must be done to shore up democracy. RSVP today

[link removed]

Want to keep up with Brennan Center Live events? Subscribe to the events newsletter.

[link removed]





News

Kareem Crayton on the unexpected win for voting rights in the Supreme Court // VOX

[link removed]

Elizabeth Goitein on Trump’s classified documents case // REUTERS

Michael Waldman on a proposed gun safety amendment to the Constitution // USA TODAY

[link removed]

Wendy Weiser on the push to restrict voting access and threaten elections // ROLL CALL

[link removed]

Feedback on this newsletter? Email us at [email protected]

mailto:[email protected]







[link removed]

Brennan Center for Justice at NYU School of Law

120 Broadway, Suite 1750 New York, NY 10271

646-292-8310

tel:646-292-8310

[email protected]

mailto:[email protected]

Support Brennan Center

[link removed]

Want to change how you receive these emails or unsubscribe? Click here

[link removed]

to update your preferences.

[link removed]

[link removed]

[link removed]

[link removed]

[link removed]

[link removed]