Thread by @stevenmazie

At 10 AM, SCOTUS hears a case that could further weaken voting rights for racial minorities. It concerns an Alabama congressional map that a panel of three judges, including two Trump appointees, found racially discriminatory. I will be tweeting and analyzing the hearing here.

Hearing in Merrill v. Milligan starting soon. Listen in here c-span.org/video/?523311-…

First up is Edmund Lacour, solicitor general for Alabama. He says AL has been "commanded" by the district court to use race as a non-negotiable criterion in drawing the congressional map. That violates the VRA and the Constitution, he says.

Justice Thomas asks the first q: what's the alternative to using race as a comparator?

Lacour: need other benchmarks

Jutsice Kagan: your benchmark, a race-neutral one, has never been accepted by this Court, right?

L: traditional districting principles matter...

Kagan: "under our precedent, it's kind of a slam dunk" that the AL map is illegal. The lower court said was an "easy case." Only 1 of 7 districts is black-majority with very racially polarized voting. You're saying: change the way we look at Section 2!

Justice Jackson: are you saying Gingles factors were not satisfied in this case??

Jackson, very animated: we have to figure out if we need to change Gingles (the 1986 precedent explaining how to detect an illegal map). It's a "heavy burden" to ask SCOTUS to reconsider Gingles or say that section 2 is unconstitutional.

Kagan: do you think section 2 sets out an intent standard, that proving intent of racial discrimination is required? We said long ago (1980) it was required, and Congress immediately "slapped us down" by clarifying section 2 is a "results test."

Kagan really lashing Lacour now, tag-teaming with Jackson, to explain that Congress was explicit in 1982 that there's *no* requirement to show intent of racial discrimination. A *result* showing a racist map is enough to violate Section 2.

Jackson: why call this map neutral? It seems to show racial discrimination quite clearly. Plaintiff has shown that a second majority-minority district can be drawn (Gingles step 1), that there's racially polarized voting (Gingles step 2)..."race has infused the voting system"

Justice Jackson is absolute dynamite in this oral argument. She has hit the ground running.

Justice Alito, tossing softball: some of your args are far-reaching, but your least far-reaching, basic arg is: Gingles requires that there be a "reasonably configured" district. Not just compact, but the type that would be drawn by an unbiased map-maker. Right?

Alito trying to show that Alabama's argument can proceed without scrapping Gingles; Kagan resisting that.

[Seems to be some dispute over whether the first G in Gingles is pronouned with a hard or soft G.]

Jackson didactic on what Gingles means, comparing the burden-shifting at step 1 to McDonnell Douglas (Title VII case).

Lacour: let's start with the state map please

Sotomayor joins the fray, notes that AL's claim that there's a community of interest that can't be split is all white. Meanwhile AL says a large community of black residents in the "Black Belt" can be split. District court is actually race-neutral then...

Roberts asks Lacour to explain whether he wants to bring back the intent test Congress removed in 1982.

Lacour hems and haws and doesn't quite answer - he says intent is relevant without saying whether it's required.

Roberts presses him again: you seem to be looking for intent with your argument. But you don't have to show intent according to our precedents.

Lacour: if you use race, that distorts other traditional map-drawing goals like compactness. "intent is not irrelevant"

He never answered Roberts's question (which was also Kagan's, and Jackson's).

Kagan: could Alabama enact a map with *no* black-majority districts? Some of what you say suggests you could.

Lacour: probably not...

Kagan: this is important to me! You seem to think that there could be zero districts for the 27 percent of the Alabama population that's black.

So it's all depends?!

Kagan zooms out to remind everyone what the Voting Rights Act is all about, despite the fact "it has fared not well in this Court" in Shelby County & Brnovich. And now here we are on a voter dilution claim and you want to cut back on 40 years of precedent. So what's left??

Breyer was fun, but the punchiness & directness of Justice Jackson's questions, alongside Justice Kagan's usual oral-argument mastery, is quite the one-two punch.

Justice Barrett: I agree with Justice Kagan on intent. But your primary argument is narrower, I thought. Is it? That there's no way to get to the two majority-minority districts w/o race-based map-making?

Lacour: yes, that's our core argument

Barrett: isn't it a compelling interest to comply with the VRA? Do you lose if that's our position?

Lacour: not a sufficiently compelling interest here; they just showed societal discrimination...

"just"?

Jackson: "I'm so, so glad for Justice Barrett's clarification." So you think the first step needs to be race-neutral. But given our normal assessment, why would there be a 14th am problem w equal protection? We look at history and tradition & framers' view...

...and the framers DID look at the Reconstruction Amendments in a race-conscious way!

Jackson, continuing: I don't think the historical record shows that the framers believed race-blindness to be required.

She's on a bit of a progressive originalist jeremiad and it's remarkable.

Justice Jackson is presenting herself very assertively as an the Bizarro Justice Thomas on race-blindness. She's showing that the Reconstruction Amendment are anything but race-blind.

This is an exchange that we absolutely would not have had with Justice Breyer.

Now that the Alabama SG is done, we have the argument against the Alabama map split between three lawyers: Deuel Ross, Abha Khanna and Elizabeth Prelogar. Ross is first.

Ross: we aren't looking for a guarantee of a 2nd majority-minority district, just a good shot at it.

Sotomayor: section 2 isn't used very often for vote dilution, right?

Ross: that's right.

Soto: so Alabama is almost unique?

Ross: AL has evidence of recent discrimination we don't see elsewhere.

Now up: Abha Khanna, one of two women arguing against Alabama's map.

Alito repeats his concern that districts need to be "reasonably configured"

Jackson jumps in to say that we don't really need computer simulations when drawing maps, because race-neutrality is not required at Gingles step 1.

Khanna: that's absolutely correct.

Khanna: there aren't many experts capable of running these computer simulations. Can't be required for map-making. And there are still subjectivities that get fed into computer simulations.

Jackson: Congress doesn't require race neutrality in Section 2, so the first step of Gingles can't be required to be race-blind.

Khanna: no basis for injecting race-neutrality or computer simulation into Gingles 1.

Finally, Elizabeth Prelogar, the US solicitor general, takes the lectern.

Prelogar: the results test was designed for this kind of case. Alabama is asking to inject race neutrality, which deletes the text Congress added in 1982 and have "drastic real-world consequences" on voting rights.

Prelogar: it's unworkable and unnecessary to use race neutrality....

Justice Barrett: what about equal opportunity?

P: comparison btw two groups of voters...Gingles guides courts to the three preconditions to make legal judgment of when there's less opportunity.

P: if you can't take account of race, you have to "stumble into the right map by accident"

Kavanaugh is concerned about compactness of the districts, one of the traditional districting criteria. But Prelogar says the alt maps are just as compact as Alabama's.

P: state will not have to use race illicitly to draw a second majority-minority district. District court found that race was not the predominant factor. Need a reasonably configured district at the outset.