The Supreme Court this week signaled that it has every intention of wholly decimating the Voting Rights Act of 1965. On Monday, the justices voted 5-4 to reinstate a new congressional map drawn by Alabama Republicans, which significantly dilutes the power of Black voters in the state and threatens to set a precedent in further undermining Black voting rights nationwide.
Late last month, three federal district court judges ruled that the map violated the Voting Rights Act by giving Black voters — 27 percent of the state’s population — just one majority congressional district where they might be able to elect a representative; the state’s six other districts would be majority white. The lower court saw the racial gerrymandering for what it was: unconstitutional. The Supreme Court has now said that for the 2022 election cycle, at least, that’s fine.
This is hardly the first blow in the courts against the 56-year-old Voting Rights Act, but it could presage a decisive one. The Supreme Court will hear further arguments over the Alabama map, but the decision to freeze the lower court’s order while appeals go forward shows a cavalier openness to racial gerrymandering shaping this year’s elections and beyond.
The right-wing justices claimed that Alabama does not have sufficient time to redraw its congressional maps before the 2022 primary elections in May, as the lower federal court had rightly ordered. For the Supreme Court majority, potentially violating the rights of Black voters is preferable to a somewhat cumbersome but feasible map-drawing process.
More troubling still, through the Alabama case, the Supreme Court has said that it will explicitly address the scope of a key provision of the Voting Rights Act: Section 2, which allows voters to seek judicial relief if they believe that a state or local government has denied or limited their voting rights on the basis of race or other minority status. In his opinion, Republican Justice Brett Kavanaugh argued that the precedents set under Section 2, to protect minority votes from dilution, have “engendered considerable disagreement and uncertainty” and should thus be addressed directly by the court next term when it considers the Alabama map case appeal in full.
Plaintiffs in the Alabama case have amply demonstrated the need for two majority-Black congressional districts to be drawn if the state is to meet Section 2’s provisions against racialized vote dilution. Kavanaugh’s argument sets the stage for the right-wing Supreme Court majority to hollow out this provision, as it has done with other Voting Rights Act protections in previous years.
Before us, which we must not deny, is a ferocious moment of organized white supremacist backlash.
In 2013, Republican justices entirely gutted Section 5 of the act, which asserted that states and localities with a history of racial discrimination must obtain federal approval for any electoral changes. At the time, Chief Justice John Roberts said that the provision was no longer necessary because “our country has changed.” (Roberts dissented from Monday’s decision in the Alabama case.) It was an extraordinary example of what the late Jamaican American philosopher Charles Mills called “white ignorance,” which should not be confused with a simple lack of relevant information. There is no innocence in white ignorance, but rather a historically entrenched “white delusion of racial superiority” that now finds expression in a “strategic ‘colorblindness.’”
“We’ve got to put the skin pigmentation issue behind us,” Alabama Republican Rep. Mo Brooks said Monday in support of the Supreme Court’s decision, echoing the favored refrain of racists: that it is racist to attend to racial oppression. White ignorance, for Mills, is that cognitive resistance produced by historic white privilege, which leaves people “intent on denying what is before them.” And before us, which we must not deny, is a ferocious moment of organized white supremacist backlash, undoing ever-imperiled rights for Black voters.
I have previously noted that today’s Republican project is, at base, in service of the “rewhitening of America,” as Cedric Robinson, the late scholar of the radical Black tradition, described the efforts after Reconstruction to ideologically entrench white standing. The attacks on voting rights go hand in hand, in the very same Republican state agendas, with current assaults on Black history and exposing histories of foundational American white supremacism.
In her dissent to Monday’s decision, liberal Justice Elena Kagan noted that the ruling “forces Black Alabamians to suffer what under the law is clear vote dilution.” She noted, too, that the court’s significant decision was one of many made hurriedly on its “shadow” docket — a term that refers to the practice of issuing emergency orders and summary decisions without the Supreme Court’s usual briefing process and oral arguments. The court’s growing use of shadow docket decisions has drawn censure from liberal and progressive legal scholars.
“Today’s decision is one more in a disconcertingly long line of cases in which this Court uses its shadow docket to signal or make changes in the law, without anything approaching full briefing and argument,” Kagan wrote.
It takes a misplaced belief in this far-right-led court’s interest in justice — a white ignorance of sorts — to believe that a full hearing of the Alabama map case would ensure protections for Black voters. It would be equally naive to hope that, in light of the Supreme Court’s latest attack on voting rights, conservative Democratic Sens. Joe Manchin and Kyrsten Sinema will change course on ending the filibuster to allow Congress to pass new voting rights laws. The senators’ commitment to corporate interests over those of people, especially Black people, will not be shaken. The inability, or indeed unwillingness, on the part of Democratic leadership to keep the two senators in line when systematic, racialized disenfranchisement is on the table should be seen as a shameful failure.
“Congress cannot sit by and watch as Americans’ most fundamental democratic freedoms are eviscerated by right-wing partisan justices,” the Congressional Progressive Caucus tweeted in response to the Supreme Court ruling. With the state of the judicial system as it is, we cannot forgive Democratic leaders who continue to directly and indirectly aid the agenda of far-right politicians and judges. White ignorance, as Mills framed it, has never been an acceptable excuse.