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The U.S. Supreme Court’s extremist right-wing majority might be just the tiniest bit chastened by the overwhelming condemnation it has received since June, when it wrapped a session that bulldozed through decades of precedent, separation of powers, the church/state firewall, and so much else. The second day of the new term was devoted to another challenge to the Voting Rights Act from the state of Alabama in which it sounded like the ringleader of the extremists, Justice Samuel Alito, was searching for a scalpel rather than a chainsaw to carve out the last significant protection under the law.

The state of Alabama asked the court to overthrow the decision by a three-judge district court panel that said the state had to redraw the Republican legislature’s electoral map. The court had already stayed that lower court ruling, so this fall’s election will be held under the Republicans’ redistricting map that creates a single congressional district (out of seven) in which Black voters are concentrated, despite the fact that the state’s population is 27% Black. The map diluted the Black population in the remaining six districts at levels too small to form a majority. Black voters challenged that map under Section 2 of the Voting Rights Act, which prohibits election practices that result in denying or abridging the right to vote based on race.

Alabama Solicitor General Edmund LaCour argued for the state, putting forward a variation of the old Stephen Colbert joke about not being a racist because he doesn’t even see race, “not even my own.” The state was simply taking a “race-blind” approach to redistricting, LaCour argued, and because it used race-neutral criteria, it is “equally open” to all voters, which means it doesn’t violate Section 2 at all.

LaCour went even further arguing that Section 2 is “at war with itself and the Constitution” because if states were really required to create majority-Black voting districts, then it would violate the 14th and the 15th Amendments to the Constitution because it would involve sorting voters by race. Enter Justice Ketanji Brown Jackson with a history and constitutional law lesson.

Alabama is trying to argue that, by taking race into account, the Voting Rights Act violates the 14th Amendment. Enter Justice Jackson with a little history lesson.https://t.co/6WgPoYmb6H pic.twitter.com/3v0WERTcO5

— Mother Jones (@MotherJones) October 4, 2022

The drafters of those amendments, she said, were “trying to ensure that people who had been discriminated against … were actually brought equal to everyone else in society. […] That’s not a race-neutral or race-blind idea,” Jackson concluded.

Alabama’s interpretation, should the court accept it, would reverse the whole purpose of the VRA: ending decades of voter suppression and discrimination against Black voters and other historically disenfranchised groups. It would spell the end of any hope of equal representation for these groups.

Alito, for once, seemed aware of the outrageousness of Alabama’s petition and unwilling to so blatantly overthrow precedent, calling it “quite far-reaching.” He then went to work to find an argument that would allow the state to win, but in a less ham-handed way.

“Your least far-reaching argument,” Alito suggested, is that the VRA “requires the showing that there can be a reasonably configured majority-minority district. It’s not just any old majority-minority district, it has to be reasonably configured. And reasonably configured means something more than just compact, it means a district that is the type of district that would be drawn by an unbiased mapmaker.”

Alito is doing the work for Alabama. Coming up with a theory that looks like it complies with existing law, but allows Alabama to win with a tweaked standard that will make plaintiffs lose more voting rights cases.

— Rick Hasen (@rickhasen) October 4, 2022

Justices Brett Kavanaugh and Amy Coney Barrett seemed likely to embrace Alito’s scheme; Thomas and Gorsuch didn’t ask questions. Though oral arguments don’t always predict rulings, previous actions by the court do. This is a majority that’s proven itself hostile to voting rights, having already shredded the VRA to bits. By the end of next June, they’re likely to have finished killing it off.

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This content was originally published here.

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