After a productive week in Washington where I voted to keep the government funded, I am looking forward to returning home to spend time with family and meet with constituents.
I wanted to take a moment to share with you some thoughts on the state of our democracy and the erosion of our voting rights. As your representative, I am seeking every opportunity to guarantee the right to vote and to stand against all efforts to restrict this most fundamental right. That is why I am an original cosponsor of and voted for the John Lewis Voting Rights Advancement Act, and why I was willing to get arrested peacefully protesting Senate inaction on the issue.
However today, I would like to provide you an update from inside the Supreme Court, which is yet again considering weakening the Voting Rights Act.
As chairman of the House Judiciary Subcommittee on Courts, I regularly speak to gatherings of judges and justices at meetings of the Judicial Conference held at the U.S. Supreme Court.
But this week I was privileged to, for the first time, observe oral argument before the Supreme Court. It’s important because at the very moment our democracy is at risk, this case could decide the fate of minority voting power across the country for generations.
The case is Merrill v. Milligan, an Alabama case that the Supreme Court chose to hear to decide whether Alabama violated Section 2 of the Voting Rights Act (VRA) with its redistricting plan that included only one majority Black district out of seven – despite having a population that is 27% Black. Today, Alabama has seven members of Congress, but only one is Black – Rep. Terri Sewell.
The district court found that Alabama violated the VRA by packing too many Blacks into a single majority Black district, and that the VRA requires that the majority Black district be unpacked so that a second Black opportunity district could be created.
And by the way, this is what a panel of three judges – two of whom were appointed by Donald Trump – said unanimously 3-0.The three-judge panel in the Northern District Court of Alabama found that the Alabama redistricting map was a “straightforward Section 2” violation and ordered that Alabama draw a new map. Ominously however, the Supreme Court reversed the lower court and ordered that the election be held using the challenged map while the case proceeds to final resolution.
The fact that the Supreme Court chose to allow elections under a racially discriminatory map after the lower court deemed the map to be a straightforward violation of the VRA raises alarms that the ultra-conservative Supreme Court appears prepared to gut the VRA even more than it already has.
In my opinion, those fears are well founded – particularly based on the arguments I heard from the attorney representing Alabama, and the questions and assertions raised by Justices Clarence Thomas and Samuel Alito, and to a lesser extent those raised by Justices Brett Kavanaugh and Amy Comey Barrett.
Alabama’s attorney argued that requiring Alabama to use race in drawing congressional districts would violate the Equal Protection Clause of the Fourteenth Amendment. But as Justice Ketanji Brown Jackson pointed out, that amendment was ratified for the very purpose of ensuring that Black people were treated equally, and therefore requiring Alabama to draw a map that would give its Black citizens an opportunity to elect the representative of their choice could not violate the Fourteenth Amendment. In other words, Black people of Alabama have a constitutional right to not be packed into one district.
Despite the gallant efforts of Justices Jackson, Kagan and Sotomayor to uphold judicial deference to legislative intent and adherence to stare decisis and prior Court precedence, the right wingers on the Court appear ready to eviscerate the VRA. If that happens, the voting rights of Black Americans will be severely threatened, and democracy for all will be imperiled.
While I remain hopeful that Justices Kagan, Sotomayor and Jackson will somehow prevail by convincing their colleagues to refrain from judicial activism and affirm the rulings of the lower court ordering Alabama to draw a map that contains two opportunity districts for Alabama’s Black voters, I am prepared for the worse.
In the Supreme Court’s last assault on the VRA in 2021, Justice Kagan noted in her dissent in Brnovich v. DNC that the Voting Rights Act represents the best and the worst of America, because while it “…marries two great ideals: democracy and racial equality…”, the reality is that the VRA remains necessary because state and local governments continue to pass laws that deprive Black citizens of their right to vote.
We’re witnessing in real time the curtailment of our civil and voting rights by an extremist Supreme Court. This term they’re debating Black Alabamans’ constitutional rights to participate in our democracy. Next term, your constitutional rights could be on the chopping block. We must all take heed that freedom and democracy are under attack.
U.S. Rep. Hank Johnson, D-Stonecrest, represents Georgia’s 4th Congressional District that includes part of Newton County in the U.S. House of Representatives.