PBS News Hour

JUDY WOODRUFF

Today, the Supreme Court heard oral arguments in one of the biggest cases of the new term. It's about the role of race in drawing congressional maps. John Yang has the story.

JOHN YANG

Judy, the specific question at issue is whether Alabama's congressional map violates what's left of the Voting Rights Act, a provision barring discriminatory practices or procedures. Lisa Desjardins starts us off with an explanation of what's at stake.

LISA DESJARDINS

Happening in Detroit and around Atlanta, a change in political capitals like Tallahassee and cultural ones like New Orleans. FRANITA TOLSON,

University of Southern California

I think that there will be fewer majority-minority districts after this election cycle.

LISA DESJARDINS

Election law expert Franita Tolson sees some red states with growing Black population limiting Black districts as they pass new voting laws.

FRANITA TOLSON

You have to think about how all of these things are working together to push us towards a reality in which minority voters are unrepresented in our system. And that's definitely a problem.

LISA DESJARDINS

In Florida, currently, four congressional districts have majority or otherwise favor Black voting populations. But the new maps cut that in half, down to two Black-centered districts. A seat in the north that some conservatives saw as gerrymandered for Blacks was erased. In North Carolina, the state's primary African American district in the Northeast Black Belt was redrawn, and Blacks are no longer the largest voting group. Other examples, purple state Michigan will move from two majority Black districts to none, that from population loss, but, in Georgia, Blacks are a third of the population and growing, and still will lose two majority districts. For others, it's a question of proportion. Alabama is a quarter Black, Louisiana a third. But both have just one majority Black district. Critics took those maps to the Supreme Court, which is looking at Alabama's first. HANS VON SPAKOVSKY,

Former Federal Election Commissioner

It's a case-by-case basis, where you have to look at the actual facts of each situation.

LISA DESJARDINS

Hans Von Spakovsky is the senior legal fellow at the conservative Heritage Foundation. He says, underneath years of complicated Supreme Court rulings, a bottom line for the right is that race can be a factor in drawing maps,

HANS VON SPAKOVSKY

It should be a minimal factor. What's more important is compactness, keeping political subdivisions, towns, cities, counties, together. MARISSA PITTMAN,

College Student

I think that's ignoring centuries of oppression that's been systemic.

LISA DESJARDINS

In Louisiana, Dillard University student Marissa Pittman is part of a student movement which sees current maps as part of an erosion of rights.

MARISSA PITTMAN

There are a few students who I have talked to who have just decided that they will not be staying in Louisiana after they graduate due to this issue. And there are also students who see this as the final straw.

LISA DESJARDINS

Her future and Louisiana's are both on hold, waiting for the Supreme Court to decide what could be a landmark case over Alabama, redistricting and the politics of race in America. For the "PBS NewsHour," I'm Lisa Desjardins.

JOHN YANG

To help us unpack today's oral arguments, our regular expert on all things Supreme Court, Marcia Coyle, chief Washington correspondent for "The National Law Journal." Marcia, you were in the courtroom today. Right off the top, Justice Elena Kagan said that, as far as she was concerned, this case was a slam dunk in favor of a second majority Black district and against Alabama. Let's take a listen to part of what she said. ELENA KAGAN,

U.S. Supreme Court Associate Justice

You're looking at a state where 27 percent of the population is African American, but only one of seven districts, where there is a long history of racial discrimination in the state.

JOHN YANG

At the time, technically, she was talking to the Alabama solicitor general, but was that her intended audience? MARCIA COYLE, "The National Law Journal": Well, I think partially. I think she was really also talking to her colleagues. She had noted back in February, the Supreme Court, five of the six conservative justices, not including the chief justice, had voted to allow Alabama's map to go into effect for the 2022 elections, even though a three-judge district court, which included two Trump appointees, had found that it likely violated the Voting Rights Act, and had ordered Alabama to go back to the drawing board and could produce a map for a second district in time for the 2022 midterms. She wrote a dissent there and very sharply accused the court really of sending a message, without briefing, oral argument or written opinions, that the law was going to change. So I think she was very much talking to the court. And, also, she was pressing the Alabama lawyer by saying, the three judges on the district court said this was an easy case. Why are we here? Talking about sending messages, Justice Ketanji Brown Jackson also seemed to be sending some messages today.

MARCIA COYLE

Yes, the Alabama lawyer was saying that, basically, his broadest argument was that redistricting should be race-neutral, race shouldn't be considered, because, when racist is considered, he said, you end up with maps like his opponents produced, which were racial gerrymanders. And Alabama, he argued, had produced a race-neutral map. But he also said that, if he considered race, he would violating the 14th Amendment, but Justice Jackson said, well, I have researched the Constitution. I have studied what the framers thought and what they read. And I looked at the amendments post-Reconstruction, like the 14th, 15th Amendment, and it's very clear that they were trying to bring equality to Black Americans who had been treated unfairly, which is exactly what Section 2 is doing, she said. So the Constitution is not colorblind. And I think that was either a direct or indirect message to justices like Justice Thomas, who argue consistently in almost every race case that the Constitution is colorblind.

JOHN YANG

There was also a lot of discussion today about the intent of diluting minority voting power and the effect of it. So let's take a listen to what two of the justices had to say, Justice Jackson and Justice Samuel Alito. KETANJI BROWN JACKSON,

U.S. Supreme Court Associate Justice

You have enough people who are in marginalized groups that another district is possible. People are being segregated, in effect, in effect, as Justice Kagan, pointed out, right? We're not talking about intent. We're talking about the effect. SAMUEL ALITO, Forget about intent. What are the results when you do a computer simulation that takes into account all race-neutral districting factors? This is a computer. It doesn't have any intent. The result is that you don't get the second minority -- majority-minority district.

JOHN YANG

Why is that distinction so important?

MARCIA COYLE

Well, first of all, it appeared, as Justice Kagan pointed out earlier, that the Alabama lawyer said in his brief to the Supreme Court that he -- she characterized it as intent is all over it. And, many years ago, the Supreme Court did say you had to prove discriminatory intent in order to make a Section 2 claim, but Congress reversed that and made it very clear that you don't have to prove intentional discrimination, which, by the way, is extremely difficult to prove. Instead, Congress said, you have to show a discriminatory result or a discriminatory effect of the voting practice that's being challenged. And so I think that Justice Jackson was pointing out, here is what we have on the ground. We have discriminatory results. And any argument you make for intent just isn't relevant, because intent is not required.

JOHN YANG

There was also, it seemed, a lot of skepticism from all sides for some of the more extreme positions that the Alabama lawyer was taking. Let's take a listen to a question posed to the Alabama lawyer by Chief Justice John Roberts. JOHN ROBERTS,

Chief Justice of the U.S. Supreme Court

What exactly is your submission and why your argument is not an effort to resuscitate the intent test that Congress has rejected under Section 2?

MARCIA COYLE

There was actually a lot of confusion about -- and I don't know how serious the confusion is, but from the questions. They seem to feel the Alabama lawyer was not really being very clear on exactly what he wanted the court to do here. What was his argument? As Justice Kagan pointed out, it seemed to be he was arguing you have to have intentional discrimination. So, the chief justice, finally, after all the questions about, what are you arguing here, put it to him. What do you -- what do you want? What are you arguing? And so, again, he stressed, the lawyer stressed a race-neutral plan. Only consider traditional redistricting principles. Eliminate race. But he also was pressed by several lawyers, several justices for, isn't there a narrower approach here? I'd say Justices Amy Coney Barrett, Justice Kavanaugh, and even the chief justice, to a certain extent, were looking for a narrower approach than no race at all. Maybe, they said, we should be focusing on one of those redistricting principles, like compactness. Is -- what does this district look like, and is it shaped right, or is it one of these crazily shaped districts like a dragon or a snake? So I think several are looking for a narrower approach. I don't think that would satisfy the justices on the left. As Justice Kagan pointed out very markedly, she said the Voting Rights Act, which she called the greatest achievement of American democracy, had not fared well in this court. And she pointed to recent decisions where the court had pretty much gutted one section and narrowed the reach of Section 2 already.

JOHN YANG

Our very own Chief Justice Marcia Coyle, thank you very much.

MARCIA COYLE

Thank you, John.