And yet Alabama argued that, by taking race into account at all, the district court indulged in “the noxious idea that redistricting begins and ends with racial considerations.”
The creation of a new majority-Black district, the state claimed, was therefore nothing more than a “racial gerrymander,” a phrase that Alabama’s lawyers used multiple times in the application for a stay.
Unless the justices blocked the order, the state warned, “Alabamians will suffer the constitutional harm of being assigned to racially segregated districts, irreconcilable with the Fourteenth Amendment, the Fifteenth Amendment, and the VRA as initially conceived.”
Section 2 is supposed to be a “shield against racial discrimination,” the state’s formal brief reads. “It is not a sword to perpetuate it.”
These sentences merit parsing with care.
The words invite a dramatic conclusion: that the heart of the Voting Rights Act, as interpreted by the Supreme Court a generation ago and as applied many times since, is unconstitutional.
What Alabama is saying, essentially, is that any effort to eradicate racial discrimination is itself racial discrimination.
But how can that be?
How can we know when a Voting Rights Act remedy is called for unless we can take account of race?
Alabama is trying to turn the statute inside out and upside down.
The district court, in rejecting the state’s argument, observed that it was “obvious” that its logic would “preclude any plaintiff from ever stating a Section Two claim.”
That conundrum will be obvious to the Supreme Court as well.
But for the conservative justices, the problem is not how to satisfy the Gingles test but rather the test itself.
Roberts made that point in his dissent from the stay.
“While the District Court cannot be faulted for its application of Gingles,” he wrote, “it is fair to say that Gingles and its progeny have engendered considerable disagreement and uncertainty.”
He then quoted Justice Anthony Kennedy, who warned in a 1994 vote-dilution case that “placing undue emphasis upon proportionality risks defeating the goals underlying the Voting Rights Act.”