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One particular aspect of the response to the Supreme Court’s major decision on Thursday to uphold Section 2 of the Voting Rights Act has stood out in the hours since the decision has come down.
As I began to explain in a post for Richard L. Hasen’s Election Law Blog, it would be tempting to view the court’s decision in the Alabama Voting Rights Act case as merely an affirmation of the long-standing requirements of voting-rights doctrine. And there is no question that statutory stare decisis—the principle that the court should not change long-standing interpretations of a statute—played a major role. But in a subtle way, the decision will, as a practical matter, actually expand the effective scope of the VRA. On the ground, the decision will result in more than mere endorsement of the previous legal status quo.
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Read MoreTechnology is changing many areas of life, and redistricting litigation is not exempt. The Alabama case was made possible by new applications of technology to VRA litigation. To win a VRA redistricting case, one element plaintiffs must show is that it is possible, where voting is racially polarized, to create a reasonably configured district with a voting-age population that is at least 50 percent Black eligible voters (or Hispanic voters or Asian voters). In earlier decades, plaintiffs had to do their best with the census data and geographic information to see if they could create such a district. Where minority populations were highly concentrated, this was easy. But when attempting to see if reasonably configured districts could be created outside those areas, more effort was required. In addition, any proposed new district plaintiffs offered might be subject to rejection because it was less compact than the state’s other districts, or broke up more towns, cities, and counties than the districts the state had drawn.
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Now, with today’s high-powered computers, it is possible to set up an algorithm that essentially says, “See if it’s possible to find a new VRA district that is also consistent with the state’s general redistricting criteria.” To be sure, extremely sophisticated local experts in particular states could do a good job with this in less formal ways. But computers can run through tens of thousands of possible maps to see if it’s possible to ferret out such a new VRA district. Indeed, that is precisely what the experts did in the Alabama case. And this same technique was used in several other Southern states to produce the same result: a demonstration that a new VRA district could be created, while still adhering to the state’s practices about how compact districts have to be and the respect owed to keeping cities, towns, counties intact to the extent possible.
AdvertisementThis new technology makes it possible to find VRA districts that might have been hard to identify in the past. That’s why there have been new challenges after the 2020 round of redistricting under the VRA in a number of Southern states, such as Georgia and Louisiana. In the wake of the Supreme Court decision, we will now have to see how many of those also turn out to be successful. Thus, from a legal perspective, the court’s decision reaffirms the framework the court first established in Thornburg v. Gingles.But when new technology is applied to that framework, it is going to generate additional VRA districts, as it did in Alabama. Because the court’s decision permits these technological advances to identify new, reasonably configured VRA districts where voting is racially polarized, the practical effect of Milligan is to increase the power and the scope of the VRA in the redistricting context.
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郑在旭
黎明诗
花泽冰
