WASHINGTON, DC – Following oral argument at the Supreme Court this morning in Merrill v. Milligan and Merrill v. Caster, cases in which the Court is considering whether Alabama’s 2021 redistricting plan for its congressional districts violates Section 2 of the Voting Rights Act, Constitutional Accountability Center Civil Rights Director David Gans issued the following reaction:

In a defining moment in this morning’s lengthy two-hour long argument, Justice Ketanji Brown Jackson made clear the progressive promise of the Constitution’s text and history as she quickly got to the heart of why Alabama’s defense of its racially gerrymandered districts would turn the Constitution and the Voting Rights Act on its head. Echoing the arguments presented in our amicus brief, Justice Jackson explained that race-consciousness is baked into the Fourteenth and the Fifteenth Amendment’s guarantee of racial equality at the polls.

As she and others also explained, Alabama’s argument that the Voting Rights Act requires maps drawn without regard to race would gut the Voting Rights Act—a statute fundamental to our democracy—and make a statute that takes account of race to ensure equal political opportunities into a shell of its former self. After all, Congress passed the Voting Rights Act to enforce the constitutional guarantee of equal political opportunity, eradicating laws that had the result of leaving voters of color with diminished political opportunities.

As Justice Elena Kagan remarked, the Roberts Court has historically not “treated [the Voting Rights Act] well,” making it harder for communities of color to elect representative of their choice. But as today’s argument makes clear, if the Court follows the text and history of both that statute and the Constitution, it should receive better treatment here.

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Resources:

Case page in Merrill v. Milligan and Merrill v. Caster: https://www.theusconstitution.org/litigation/merril-v-milligan/ 

David Gans, Race-Consciousness Is Baked Into the Constitution’s Text and History, Oct. 3, 2022: https://www.theusconstitution.org/blog/blog-race-consciousness-is-baked-into-the-constitutions-text-and-history/

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Constitutional Accountability Center is a nonpartisan think tank and public interest law firm dedicated to fulfilling the progressive promise of the Constitution’s text, history, and values. Visit CAC’s website at www.theusconstitution.org.

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