A series of contradictory rulings in cases involving redistricting highlight the need for Congress to set national voting rights standards
Congress ‘Has a Role to Play’ in Setting National Voting Rights Standards
By Mark Hedin
The first shots in America’s Civil War were fired in the city of Charleston, South Carolina. Four years later, former slaves in the city honored Union soldiers who had died in captivity there, initiating the annual Memorial Day holiday.
Today, Charleston is again at the crossroads of the struggle for civil rights with a recent Supreme Court decision that effectively dilutes Black voting power.
The May 23 ruling written by Justice Samuel Alito allows South Carolina’s Republican-dominated state legislature to “crack and pack” Charleston’s Black voters.
The ruling allows 62% of Charleston’s Black voting population, about 30,000 voters, to be shifted – or “cracked” – out of the state’s tightly contested 1 st Congressional district and packed into the neighboring 6 th district, represented for 31 years now by Black Democrat James Clyburn.
At the same time, the 1 st district will become 86% white as it is expanded into rural regions where white, Republican-leaning voters have been more dominant.
The South Carolina ruling concludes a dizzying array of gerrymandering cases nationwide that will help shape this year’s elections.
Two weeks prior, the Court took a different tack on another gerrymandering case, Landry v Callais , where it handed what appeared to be a win for Louisiana’s Black voters, representing almost a third of the state’s population, greenlighting the creation of a second majority-Black district.
Partisan divides
Why the discrepancy in the two rulings?
Both the South Carolina and Louisiana rulings involved 6-3 majorities in which the Justices appointed by Republican presidents voted in the majority, and the three Democrat appointees opposed.
In South Carolina, Alito reasoned that the Court had to take the word of the state legislators that the change was made not over racial considerations, but to gain partisan advantage, something the Court has allowed states to do since its Rucho decision in 2019.
In Louisiana, the Court relied on the “Purcell principle,” established in a 2006 case, that encourages courts to not intervene when there’s an election on the horizon, although the specific time frame has never been established.
Kathay Feng is vice president of programs with the advocacy organization Common Cause. She says the seesawing of gerrymandering rulings reflects the country’s growing partisan divide over protecting voter rights.
“Democrats and Republicans used to agree that it was important for us to have laws that protected minorities against discrimination,” Feng told Ethnic Media Services. “There has been a change.”
She described how the 1965 Voting Rights Act (VRA), perhaps the signature achievement of that era’s civil rights movement, used to enjoy bipartisan support. “In 2006, the last time the VRA was reaffirmed (by the US Senate), it was bipartisan, near unanimous,” she said. “Twenty years later, there’s a deep divide that falls along partisan lines.”
A series of decisions in the past decade or so by the John Roberts-led Supreme Court has eroded protections under the VRA that sought to end “Jim Crow” era rules denying Black and brown citizens the right to vote as guaranteed by the 14 th Amendment.
The dam broke in 2013 when the Supreme Court ruled in Shelby County (AL) v Holder that racial discrimination had subsided to the point that it was no longer necessary for jurisdictions with a history of racist voting rules to obtain “preclearance” from the federal Justice Department before making any changes to how their elections were run.
That “preclearance” had been stipulated by Section 5 of the VRA.
Modernizing voting rights legislation
The decision set off a nationwide torrent of new rules in one state after another, some within hours of the decision being announced, and lawsuits challenging them. In the ensuing tumult, SCOTUS issued seemingly contradictory rulings, for instance allowing the use of maps in Louisiana’s 2022 midterm elections that a lower court had found to be discriminatory against Black voters, while it considered a similar case out of Alabama. In 2023 , it ruled that both states had tried to restrict Black voting power, which in Louisiana’s case set more cases in motion, finally ending with the May 14 ruling.
More than anybody, Congress has the power to bring some order to the court’s actions, and nearly did so just a few years ago with two pieces of legislation, the John R. Lewis Voting Rights Advancement Act and the Freedom to Vote Act. Both faced universal opposition from Republican legislators and almost complete support from Democrats.
Still, insists Feng, Congress has a role to play in setting national voting rights standards. “We can still rely on the VRA as good law,” she said, “but we need to modernize, strengthen and restore it.”
Michael Li of the Brennan Center for Justice agrees. “There’s still a lot of momentum behind the Freedom to Vote Act and the John R. Lewis Voting Rights Act,” he said just before the South Carolina decision was announced.
Both measures have been reintroduced in the current Congress. The John R. Lewis Voting Rights Advancement Act, named in honor of the late civil rights leader and Congressman, would restore the “preclearance” requirement of the 1965 VRA.
Its current iteration in the House is HR 14, sponsored by Rep Terri Sewell, of Alabama. Dick Durbin of Illinois has introduced it as S. 4 in the Senate.
The Freedom to Vote Act, among other things, would make Election Day a holiday, ban partisan gerrymandering by requiring independent redistricting commissions, and mandate at least 15 days of early voting for federal elections.
Implications for the South
Those two measures came close to being enacted in 2021 but were sunk by Republican filibustering and by the refusal of Democrat Senators Joe Manchin of West Virginia and Kyrsten Sinema of Arizona to exempt the proposals from filibuster rules that require at least 60 votes to pass the chamber, as had been allowed in 2017 for Supreme Court nominees, paving the way for Justice Neil Gorsuch’s ascension.
The Freedom to Vote Act has been reintroduced in the House as HR 11, sponsored by Maryland Rep John Sarbanes, and in the Senate by Amy Klobuchar, of Minnesota, as S.1.
Neither measure is likely to pass the current Republican-controlled House, which raises some tricky questions for the South, now the fastest-growing region in the country where partisan loyalties often run parallel with racial identities.
“If you’re talking about doing fair representation for people of color in the South,” said Li, “you’re going to have to do something federally. The South has never changed without some federal assist.” – Ethnic Media Services
