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But several experts, including Tolson, have told me they don`t expect the conservative supermajority on the Supreme Court to go down that road. Indeed, the Court has become increasingly hostile to the Voting Rights Act in recent decades. The timing is no coincidence. Roberts, who has been chief justice since 2005, has been critical of the law — and section 2 — since he was a young government lawyer in the 1980s. Under Section 5, any change in voting in a covered jurisdiction — or a political subdivision within it — may not be enforced unless the jurisdiction first obtains the required decision from the United States District Court for the District of Columbia or refers the matter to the Attorney General. This requires proof that the proposed electoral change does not deny or restrict the right to vote on the basis of race, colour or minority status. If the judiciary is unable to prove the absence of such discrimination, the District Court will reject the requested judgement or, in the case of administrative motions, the Attorney-General will oppose the amendment and it will remain legally unenforceable. In January, a three-judge federal court ruled unanimously that Alabama could and should have created two compact congressional districts with a majority or nearly a majority of black voters: two districts instead of one. Two of the jury judges were appointed by Trump, the third by Clinton. This surprising statement is far from historical and existing interpretations of the Voting Rights Act and the Constitution. The courts have never ruled that the Fourteenth Amendment prohibits any consideration of race in the drawing of the map.
The only constitutional limit is that race cannot dominate. And while the creation of a black belt district would give black voters a chance to win an additional seat, the court noted that the black belt is a well-defined region with “many more” common dimensions than skin color, including its “shared history and shared economy”; “the predominantly rural agricultural experience; the unusual and extreme poverty found there; and the major migrations and demographic changes that affected many black belt residents,” both whites and blacks. In fact, Alabama itself holds the indivisible black belt in other non-congressional maps. Unconstitutional because it is based on the affirmative creation of a compact second district based on race. As Alabama said in its briefs, by requiring a “race-based” redistricting map, the lower court “indulged in the pernicious idea that redistribution begins and ends with racial considerations.” In its court briefs, Alabama argued that the lower courts erred, saying the state had a “racially neutral” reason for drawing its current map: “Just because a majority minority district could be drawn doesn`t mean it has to be drawn.” Line drawers already have broad appeal and the ability to consolidate their power at the expense of communities of color. The Supreme Court could open the floodgates if it continues to abolish the right to vote in the Merrill case. A North Carolina lawsuit could have far-reaching implications, as Republicans are asking the Supreme Court to deprive state courts of the ability to review election laws under their state constitutions. The reading of the election clause in the constitution underlying the case – the so-called “independent state legislature” theory – garnered the approval of much of the conservative legal community, and four Supreme Court justices signaled at least some support. Article 2, on the other hand, was drafted to deal with discrimination after it has occurred. It functions as an enforcement mechanism for the Fifteenth Amendment, which states that the right to vote cannot be denied or restricted on the basis of race.
In fact, it gave minority voters another opportunity to take voter suppression to court. Basically, this applies to the redistricting process, as states are prohibited from drawing district boundaries in a way that dilutes racial minority votes. According to Jesse Rhodes, a political science professor at the University of Massachusetts, Amherst, who has written about the history of the Voting Rights Act, the law was designed to “give [minority voters] an equal chance to elect candidates who represent them and wield power in proportion to their numbers.” Section 2 guarantees black voters an equal opportunity to participate in the political process and elect candidates of their choice. This includes the right that their votes are not diluted by the way the voting cards are drawn. In guiding the investigation into whether there was unlawful dilution of votes, the courts rely on a factual test first established by the Supreme Court in Thornburg v. Gingles in 1986. This multi-part test is complicated, but essentially explores two questions. First, do the decisions of stick artists – even if they are not intentionally discriminatory – interact with racially polarized elections and other conditions on the ground in a way that ensures that otherwise politically connected minority communities are permanently excluded from political power? Second, are there reasonable alternatives that would not lead to this result? The case also drew the rare friend of the Chief Justices` Conference, a task force made up of senior state judges.