Redistricting fights across South put future of Voting Rights Act in the spotlight again

By Fredreka Schouten

On December 21, 2023

One of the things Edna Courville remembers most about the 1960 presidential election is her mother’s fury as the adults gathered in the dining room of their Minden, Louisiana, home to review the preamble to the US Constitution.

They were preparing, she said, for the state’s Jim Crow-era literacy test, one of the notorious hurdles to voting erected before the 1965 Voting Rights Act sought to dismantle racial discrimination in US elections once and for all.

Her mother fumed that the person who would administer the test was barely literate himself, Courville recalled. “She said, ‘I cannot believe that I’m going to have to go and recite a part of the preamble in front of a White man who cannot read his name in boxcar letters.’”

Decades later, Courville, now 80, stands in the middle of a battle over one of the remaining pillars of that law. She’s a plaintiff in a lawsuit brought by a local branch of the NAACP and other groups that has sought to reverse a Republican decision that eliminated the only minority-dominant precinct in Galveston County, Texas, the community where she has lived for more than 50 years.

‘I thought, ‘Here we go again with people trying to take rights away from us,’” the retired social worker said of the move by the GOP-controlled Galveston County Commissioners Court to dismantle her precinct.

The Galveston case is one of a slew of legal confrontations that have raged across the South over claims that Republicans have used the redistricting process following the 2020 census to draw lines that preserve their dominance in state and local politics at the expense of voters of color – even as the region grows more diverse and more politically competitive.

GOP officials defending the maps say they are in keeping with long-standing redistricting practices in their states and with the US Supreme Court’s recent moves to curb race-conscious policies, such as ending affirmative action in college admissions. And they argue that liberal litigants challenging district lines are seeking to weaponize the voting law for partisan gain.

The stakes are high.

The outcome of the remaining battles could determine control of the levers of government, from the US House of Representatives to local communities, after November’s elections. The cases also spark fresh questions about the reach – and continued power – of one of the nation’s landmark civil rights laws.

New challenges to the Voting Rights Act loom – including whether private individuals like Courville even have the authority to bring legal action to stop alleged violations of the law.

Supreme Court surprise in Alabama

These protracted fights in places such as Texas, Georgia and Louisiana are playing out during the first decennial round of redistricting since the US Supreme Court in 2013 gutted a key part of the Voting Rights Act.

The so-called preclearance provision of the federal law required states and local jurisdictions with a history of racial discrimination to first obtain the permission of the federal government or the courts before enacting new laws related to voting. But a decade ago, the high court hobbled the preclearance requirements of the law, ruling that the country had changed and that intense federal oversight of elections in these places was no longer warranted.

Now, one of the main tools remaining for those seeking to enforce the promise of the Voting Rights Act falls under Section 2 of the law, which prohibits discrimination based on race. But, unlike preclearance, challenges to discriminatory voting laws and racial gerrymanders under Section 2 can only be brought after those laws are enacted.

In a high-profile Section 2 case, the US Supreme Court in June upheld a challenge brought by activists and civil rights groups to a congressional map in Alabama, agreeing with a lower court that the state’s Republican-controlled legislature had violated the Voting Rights Act when it created just one Black-majority district out of seven US House seats, although Black Alabamians make up about 27% of the state’s population.

The 5-4 decision, which saw two conservatives join the court’s three liberals to affirm key parts of the lower court’s ruling, stunned many court observers, who had expected the court to further curtail the federal voting law.

Evan Milligan – a 42-year-old activist from Montgomery, Alabama, and one of the lead plaintiffs in the Supreme Court case that now bears his name – is part of a coalition that challenged the map as illegally diluting Black political power in his Deep South state.

Whether to even pursue a Section 2 claim had sparked intense debate among the activists involved, said Milligan, the executive director of a three-year-old civil rights organization called Alabama Forward.

Some in the coalition feared that relying on the already weakened federal law in their redistricting fight risked further erosion of the Voting Rights Act, he said. But others insisted they forge ahead.

“We had a group that argued, ‘Here is the Voting Rights Act. It may not look like much right now. It may be weak and a shell of what it used to be. But there’s life in it. And we don’t walk away from that,’ ” Milligan said recently.

And the activists, he said, remain determined to “stand” with the law “until they force it out of our arms publicly, on the record for all of history and the world to see.”

Redistricting cases that had been on hold until the Supreme Court ruled in the Alabama case, Allen v. Milligan, sprang to life in the months since, with varying results.

New tests

In the Alabama case, the high court’s ruling faced immediate pushback from state legislators who quickly passed a new map that defied the federal court’s order to create a second Black-majority district or “something quite close to it.”

After the Supreme Court, for a second time, rebuffed Alabama Republicans’ efforts to sidestep the ruling – a three-judge federal panel in October signed off on a new map – drawn by a special master and outside cartographer this time. It established a new congressional district across southern Alabama with a substantial Black population.

That map will be used in the 2024 election and is likely to give Alabama two Black lawmakers in Congress for the first time in state history and Democrats an additional seat in the US House. Republicans currently hold a slim majority in the chamber.

(The state’s resistance has come at a high price: The map-drawing bill alone cost Alabama more than $514,000, court records show.)

How Alabama’s districts voted in 2020, by presidential vote margin, in percentage points

Group that represents the majority in each Alabama district

Alabama officials, however, have vowed to fight the map’s use in election cycles after 2024. The federal courts, they argue, improperly imposed their judgment over that of state lawmakers who know Alabama better. Republicans in the state say they want to keep similar communities together without making race the predominant factor in congressional boundaries.

“If this brazen and divisive commandeering is permitted without even a whisper of concern from other quarters, America’s congressional elections as we know them will never be the same,” Alabama Attorney General Steve Marshall said in a statement. “We will be grouped together by race alone, with counties and cities split down the middle — the same way that we were so wrongfully segregated once before.”

Milligan, who traces his roots in the state back six generations since slavery, said the coming legal fights over the future of the congressional map simply will mark “round No. 155 for anyone who has been Black and living in Alabama.”

“But it’s not a fight or a struggle that we’ll relent on or give an inch on at any point anytime soon,” he said.

Elsewhere, new voting rights disputes have erupted, most notably in the US Court of Appeals for the 8th Circuit, and these could narrow the scope of the Voting Rights Act.

A panel of appellate judges on the 8th Circuit recently affirmed a ruling by a federal judge in Arkansas that private organizations, like the NAACP and the ACLU, and individuals, like Courville and Milligan, have no authority to bring lawsuits under Section 2. The power rests entirely with the US Justice Department, the panel held in a 2-1 decision.

The ruling bucks decades of legal practice, including many Supreme Court cases.

In his dissent, Chief Circuit Judge Lavenski Smith – a George W. Bush appointee – noted that at least 182 successful Section 2 cases have been brought in the past 40 years, only 15 of which were brought solely by the US Justice Department.

The 8th Circuit ruling is a result that conservative critics of Section 2 lawsuit have sought.

Jason Snead, the executive director of the conservative Honest Elections Project, called the decision a “victory for the rule of law” and said it could help curb what he views as the abuse of the Voting Rights Act by private litigants and groups, who he says are using the law to gain a partisan advantage.

“I’ve always had a concern that the courts are being misused for political purposes,” he said.

The issue could land before the Supreme Court to resolve, and critics of the private litigation have pointed to language by Justice Neil Gorsuch, who wrote in a 2021 concurring opinion, that it was an “open question” whether Section 2 of the law allowed a private right of action.

Some voting rights lawyers are dubious that the high court would cut off private litigation, given the years of legal precedent on the issue.

“When your local government won’t listen to you, the only place that you can go is court,” said Kareem Crayton, senior director for voting rights and representation at the liberal-leaning Brennan Center for Justice. “Your ability to get into court and defend and vindicate your rights is as essential to the Constitution as voting.”

In Louisiana, meanwhile, lawmakers are under court order to draw a second Black-majority congressional district by the end of January. (Black people make up roughly a third of the state’s population, but Louisiana has just one Black lawmaker – who is also the lone Democrat – in its six-member US House delegation.)

And in Georgia, the GOP-controlled state legislature recently approved new congressional and state legislative maps to comply with a federal court order. Critics contend the maps still dilute the political power of people of color in a swing state that saw its population surge by about a million residents between 2010 and 2020.

Minority residents accounted for “all of Georgia’s population growth” in that decade, US District Judge Steve Jones wrote in his October ruling, ordering new maps. But, he said, the number of Black-majority congressional and legislative districts in the maps initially drawn by Georgia’s GOP-led legislature had “remained the same.”

Now, Jones must decide whether the district lines approved in December by state Republicans fully comply with his instructions. The redrawn congressional map added new Black-majority districts, but at the expense of so-called minority coalition districts, such as one in suburban Atlanta currently held by Democrat Lucy McBath. Black, Latino and Asian residents make up the majority of voters in her district, but no single race or ethnic group dominates.

The disputes in Georgia and Galveston County are sparking further legal debate over whether the Voting Rights Act permits these coalition districts. Appellate courts are divided on that question. At a hearing Wednesday in Atlanta, an attorney for the state of Georgia argued that federal law protects just one group – not coalitions of minority voters. And Jones himself noted that the case at hand centered on the rights of Black Georgians.

He promised to rule quickly. Officials in Georgia say maps must be finalized next month to meet deadlines for the 2024 elections.

“I think that opponents of the Voting Rights Act were shocked by what happened in Milligan, and I think that maybe they are even in a state of disbelief and denial that it happened,” said Mark Gaber, the senior director for redistricting at the nonpartisan Campaign Legal Center – one of the voting rights groups engaged in Section 2 litigation. “They are making a run that perhaps there is a majority on the (Supreme) Court that’s willing to reverse course.”

‘Treated like cattle’

Whether the protections of the Voting Rights Act extend to multiracial coalitions stands at the center of the current legal confrontation in Galveston County, the latest redistricting showdown to play out in this Gulf Coast community of some 350,000 people.

More than a decade ago, when preclearance was still in effect for Texas, the Justice Department rejected an effort to redraw the county’s electoral precincts, on the grounds that it would dilute minority power.

But the county’s redistricting process after the 2020 census has drawn headlines and lawsuits – from civil rights groups and the US Justice Department, both over the manner in which the new precincts were drawn and the final plan itself.

The Galveston County Commissioners Court, as the local governing body is known, held just one public hearing about the map — a heated event, where Commissioner Stephen Holmes, the current officeholder in Courville’s precinct, and many residents implored the Republican majority to abandon the plan. At the time, Holmes was the only Democrat and the only person of color on the Commissioners Court.

While no single minority group made up the majority of voters in his precinct, Black and Latino voters together accounted for 58% of the precinct’s total population in 2020.

The public meeting on the redistricting plan was scheduled on a weekday afternoon, instead of the evening hours. And instead of gathering in the Commissioners Court’s normal meeting room inside a courthouse that can seat about 250 people, the hearing was held in another building about 25 miles away from the city of Galveston in a meeting room that could only accommodate 65 to 75 people, according to the DOJ’s lawsuit.

There was no overflow room for the estimated 150 to 200 people who attended, leaving residents – some of whom were elderly people using walkers and wheelchairs – to line the hallways. And participants, the DOJ said, struggled to even hear the proceedings because the room had no sound system.

Courville, a longtime community activist and onetime candidate for a local post in Texas City, Texas, was among the speakers that day and angrily denounced the map as “destroying totally” her community, footage of the meeting shows.

“It was one of the most frustrating things that I have ever encountered as an adult,” she said in a recent interview. “We were treated like cattle.”

In the end, the map was approved 3-1, with Holmes the only “no” vote.

After trial, US District Court Judge Jeffrey Vincent Brown, an appointee of former President Donald Trump, sided with the plaintiffs in Galveston, ruling that the initial maps were “fundamentally inconsistent” with Section 2 of the Voting Rights Act. And he called the events in Galveston County “stark and jarring” with the commissioners transforming Holmes’ district “from the precinct with the highest percentage of Black and Latino residents to that with the lowest percentage.”

“We felt vindicated,” Courville said of Brown’s ruling.

Her elation was short-lived. The majority on the Galveston commission has appealed, arguing that the Voting Rights Act “does not protect minority coalitions.”

And the judges on the conservative 5th US Circuit Court of Appeals, which had previously ruled that Section 2 allowed minority-coalition claims, now plan to revisit that precedent.

It has scheduled a hearing on that question before the full appellate court in May. A last-ditch attempt by the civil rights groups to persuade the US Supreme Court to intervene and force the local government to use a new map in time for the March primary election failed. (The high court did not explain why it was leaving the map in place – so it’s not clear whether a majority thought it was too close to the election to impose new precinct lines or whether some of the justices are open to examining the question of minority coalitions.)

Mark Henry, the Galveston County chief executive, said through a spokesman that for “all the criticism” of the commissioners’ actions, “it appears the courts are agreeing with what we’ve done.”

(Galveston County officials also note that the five-member commission now has more minority representation than it’s ever had with another Black member joining Holmes on the panel. That commissioner, Republican Robin Armstrong, was appointed to a fill a vacancy in 2022 and has since won the seat after running unopposed. Holmes’ seat is up for reelection next year.)

But, as a result of the Supreme Court’s decision not to intervene, the 2024 primary and general elections in Galveston County will proceed under a map that the lower-court judge ruled had illegally diluted the votes of the county’s Black and Latino residents.

“There’s no justice,” Courville told CNN after the Supreme Court’s action. “It’s like they don’t care what they do to people.”

And, after a lifetime of voting, Courville said she’s considering sitting out the upcoming local elections. “You get tired of hitting these brick walls.”

This piece was republished from CNN.