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The Supreme Court upholds the provision prohibiting racial gerrymandering


More than a quarter of Alabama residents are Black, and many are Democrats. The thing is, only one of the state's seven congressional districts is represented by a Black Democrat. The rest of the delegation is made up of white Republicans, but that's likely to change in the wake of a U.S. Supreme Court ruling requiring Alabama to redraw its congressional district map and give Black voters more power. For more on the implications of yesterday's decision, we called UCLA law professor Rick Hasen, who has written extensively about election law, and he spoke to our colleague Michel Martin.


First, I want to just mention that this decision has been widely described as a surprise. Why is that?

RICK HASEN: Well, John Roberts has a long history of being skeptical of the Voting Rights Act. And, in fact, the provision at issue in this case, Section 2 of the act, was rewritten by Congress in 1982. And, at that time, John Roberts was working for Ronald Reagan and opposed to the expansion of Section 2 that led to the victory in this week's ruling.

MARTIN: What do you think changed his mind? Any thoughts about that?

HASEN: The court's legitimacy has been under some pressure in the last year, given both rulings that have been controversial, like the abortion ruling and gun ruling and, probably, the likely affirmative action education ruling and also because of ethics scandals. And it would have been a major step for the court to decimate yet another provision of the Voting Rights Act. And so I don't know that Roberts and Kavanaugh, the two conservatives that joined the three liberals, wanted to take the heat that would have come from yet another blockbuster ruling.

MARTIN: If that is the case, then it would suggest that these decisions are being made on political grounds and reputational grounds but not on the basis of some sort of legal philosophy. Do you think that there has been some shift in the way the court is viewing these cases?

HASEN: These are cases that involve complex statutes. They involve complex constitutional provisions. There are no clear answers to these questions, and that leaves room for a lot of discretion. It doesn't mean that the justices are making naked political calculations, but, at least subconsciously, they have to be aware that there is a social context in which they make their decisions. And so not rocking the boat here gives the court a little more political capital to do other more radical things elsewhere.

MARTIN: One of the issues that's sort of at play here is this whole question of whether redistricting done for the purpose of giving racial advantage is permissible. Does this decision say anything about that?

HASEN: So what the court says is that race-based remedies, in the context of redistricting, are permissible. They are constitutional. That's a big deal because this has been something that Roberts and others on the court have been skeptical about. But it does say that you cannot make race the predominant factor when you draw district lines. When that happens, it becomes unconstitutional. So it's trying to draw this line between what's OK and what is not.

MARTIN: So I guess I'm trying to figure out, did the court determine where the line is or not?

HASEN: So what the court says is that if a state could draw a district line to give minority voters more representation, it is allowed to do so - and, in fact, the Voting Rights Act would require it to do so - if it's not going to mess with the traditional districting principles. So, for example, when lines are drawn in really weird ways and so the shape of districts looks really odd, that might be a signal that race was made the predominant factor, the most important factor, and that's something that you cannot do. But being race-conscious to allow minority voters to have that opportunity to elect their preferred candidates, that's permissible.

MARTIN: So before we let you go, Professor, there are other cases pending that - involving Louisiana, Texas and Georgia. Are there implications for those cases?

HASEN: Well, the biggest implication - right? - is what didn't happen. So it would have been an earthquake for the court to have ruled the way the dissenters wanted.

MARTIN: Rick Hasen is professor of law and political science at UCLA, and he's the director of the Safeguarding Democracy Project.

Professor Hasen, thanks so much for talking to us and sharing this expertise with us.

HASEN: It's been a pleasure. Transcript provided by NPR, Copyright NPR.