SCOTUS conservatives continue their assault on voting rights

After sending two gerrymandering cases back to the lower courts for further deliberation last week, SCOTUS punts on two gerrymandering cases, the Court had two additional redistricting cases currently under consideration.

The Court also sent the case from North Carolina, Rucho v. Common Cause, back to the lower court this morning as well, Supreme Court sends case on North Carolina gerrymandering back to lower court:

The Supreme Court on Monday sent back to a lower court a decision that Republicans in North Carolina had gerrymandered the state’s congressional districts to give their party an unfair advantage.

The lower court will need to decide whether the plaintiffs had the proper legal standing to bring the case.

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When a three-judge panel invalidated the map of congressional districts, it became the first to strike a congressional map on the grounds that it was rigged in favor of a political party [i.e., partisan gerymandering].

North Carolina has a past at the Supreme Court, with redistricting plans struck down as racial gerrymanders. So when the state legislature adopted new plans in 2016, Republican leaders made clear they were drawing the lines to help their party, instead of basing their decisions on racial data.

What these three remands mean is that Justice Anthony Kennedy is not yet ready to rule on partisan gerrymandering cases.

The conservatives on the Court did decide a racial gerrymandering case today from Texas, Abbott v. Perez (.pdf), in which a divided court split along ideological lines 5-4 largely siding with the state of Texas. Some disturbing opinions from Justices Thomas and Gorsuch suggested that the Voting Rights Act does not apply to racial gerrymandering in redistricting, in the conservatives continuing efforts to further gut the Voting Rights Act.

Amy Howe at SCOTUSblog breaks down this contentious opinion, Opinion analysis: Texas scores near-complete victory on redistricting:

This morning the Supreme Court ruled in favor of Texas in a dispute alleging that the state’s lawmakers had drawn redistricting maps to discriminate against some of the state’s black and Hispanic residents. By a vote of 5-4, the justices threw out almost all of a ruling by a three-judge federal district court that would have invalidated the maps, agreeing with the lower court only that one state legislative district was a racial gerrymander. Today’s ruling means that elections this year will likely go forward using the existing maps.

The decision came in the two cases known as Abbott v. Perez, which date back to 2011, when Texas’ Republican-controlled legislature began to redistrict after the 2010 census. The legislature’s federal congressional and state legislative maps never took effect, because a three-judge district court (which normally hears redistricting cases) barred the state from using the maps and created its own plans instead. But the U.S. Supreme Court threw out the court-created maps in 2012, telling the lower court to use the state legislature’s maps as a “starting point” for new maps. The district court did so, and in 2013 the state legislature adopted the maps for permanent use.

Last year the district court ruled that parts of the 2011 federal congressional maps violated the law because one district diluted the votes of Hispanic residents, while a second was the product of racial gerrymandering. The court also found vote dilution in the state legislative maps. A few months later, the court weighed in on the 2013 plans, holding that because they perpetuate the discrimination found in the 2011 maps, they too violate the law. After the state indicated that it would not redraw the plans to fix the violations that the court had found, the court ordered hearings on new plans. The state asked the U.S. Supreme Court to step in and block the lower court’s orders, which the justices agreed to do last year.

Justice Samuel Alito wrote for the majority, in an opinion joined by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas and Neil Gorsuch. Alito began by rejecting the challengers’ contention that the Supreme Court lacked the authority to review the case at all because federal law only gives the court the power to hear appeals from a three-judge district court that either grants or denies an injunction – which, the challengers argued, the district court’s orders were not. Even if the district court had not specifically labeled the orders at issue in this case as “injunctions,” Alito explained, the real question is whether the orders had the “practical effect” of an injunction. And these did, he reasoned, because the orders not only found violations of federal law and the U.S. Constitution but also required the state to quickly notify the court whether the state legislature would meet to fix the violations. “The short time given the Legislature to respond,” Alito posited, “is strong evidence that the three-judge court did not intend to allow the elections to go ahead under the plans it had just condemned” – which, “for all intents and purposes, constituted” injunctions against the state.

Alito then turned to what he characterized as the main question on the merits of the state’s appeal: whether the district court was wrong “when it required the State to show that the 2013 Legislature somehow purged the ‘taint’ that the court attributed to the defunct and never-used plans enacted by a prior legislature in 2011.” According to Alito, the district court’s analysis was exactly backward: Even if a state has been found to have discriminated in the past, he observed, there is still a presumption that it acted properly in drafting later redistricting plans. This means that the plaintiffs challenging a redistricting plan still have to show that the legislature intended to discriminate when it enacted the current plan.

Alito acknowledged that the intent of the Texas legislature when it enacted the 2011 plan was something that a court could consider, and he added that the mere fact that the 2013 plans largely mirrored the 2012 interim plans adopted by the court did not immunize the 2013 plans from a challenge. But when all of the evidence is considered together, Alito concluded, it does not show that the legislature intended to discriminate against minority voters. If anything, Alito stressed, the available evidence suggests that the legislature did not intend to discriminate, but instead adopted the 2013 plans because it had been advised that doing so was the best way to end the “expensive and time consuming” litigation over the redistricting plans.

The majority’s holding that the district court had applied the wrong test resolved almost all of the case in Texas’ favor, leaving only four districts that the district court had invalidated for reasons other than discriminatory intent. Here the majority reversed the district court’s holding that three of the districts diluted the votes of minority voters, but it upheld the district court’s ruling that a state legislative district in Tarrant County was the product of racial gerrymandering. The legislature had “substantially modified” the Tarrant County district in 2013, and the state contended that it had done so to comply with the Voting Rights Act. But the reasons that the state cited to justify its decision to focus on race in drawing the district were “simply too thin a reed to support the drastic decision to draw lines in this way,” Alito concluded. The court therefore sent the case back to the lower court, presumably for it to apply the correct test to the districts that it had previously struck down.

Justice Sonia Sotomayor, in a dissent longer than Alito’s majority opinion, joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan, offered a blistering dissent to the majority which began:

The Court today goes out of its way to permit the State of Texas to use maps that the three-judge District Court unanimously found were adopted for the purpose of preserving the racial discrimination that tainted its previous maps. In reaching its desired result, the majority commits three fundamental errors along the way.

First, the majority disregards the strict limits of our appellate jurisdiction and reads into the District Court orders a nonexistent injunction to justify its premature intervention. Second, the majority indulges Texas’ distorted reading of the District Court’s meticulous orders, mistakenly faulting the court for supposedly shifting the burden of proof to the State to show that it cured the taint of past discrimination, all the while ignoring the clear language and unambiguous factual findings of the orders below. Third, the majority elides the standard of review that guides our resolution of the factual disputes in these appeals—indeed, mentioning it only in passing—and selectively parses through the facts. As a result of these errors, Texas is guaranteed continued use of much of its discriminatory maps.

This disregard of both precedent and fact comes at serious costs to our democracy. It means that, after years of litigation and undeniable proof of intentional discrimination, minority voters in Texas—despite constituting a majority of the population within the State—will continue to be underrepresented in the political process. Those voters must return to the polls in 2018 and 2020 with the knowledge that their ability to exercise meaningfully their right to vote has been burdened by the manipulation of district lines specifically designed to target their communities and minimize their political will. The fundamental right to vote is too precious to be disregarded in this manner. I dissent.

Sotomayor would not have reached the merits of the challenges at all, because in her view the lower court’s orders did not grant or deny an injunction. And she lamented the majority’s ruling to the contrary, predicting that the court’s docket will soon be “flooded by unhappy litigants in three-judge district court cases, demanding our review.”

Although the majority should not have discussed the merits at all, Sotomayor continued, there too it went astray. First, Sotomayor complained, the district court did not (contrary to Texas’ assertion and the majority’s conclusion) get the legal test wrong: The district court did focus on the legislature’s intent when it adopted the 2013 plans, “rather than simply presuming invidious intent from the failure to remove the taint, as the majority claims.” And when all of the evidence is considered together, Sotomayor contended, the district court properly concluded that the legislature did intend to discriminate.

In a blistering final paragraph that closed with the phrase “I dissent,” rather than the “I respectfully dissent” often used by the justices, Sotomayor protested that today’s ruling “does great damage to” the right “to equal participation in our political processes.” “Not because it denies the existence of that right, but because it refuses its enforcement. The Court intervenes when no intervention is authorized and blinds itself to the overwhelming factual record below. It does all of this to allow Texas to use electoral maps that, in design and effect, burden the rights of minority voters.”

Mark Stern writing at Slate explains Neil Gorsuch Declares War on the Voting Rights Act:

On Monday, the Supreme Court issued a bitterly divided 5–4 decision upholding all but one of Texas’ gerrymandered districts, ruling they were not drawn with impermissible racial bias. Justice Samuel Alito’s majority opinion reverses a lower court’s conclusion that Texas gerrymandering both congressional and state legislative districts in order to curb the power of minority voters. The ruling is a brutal blow to civil rights advocates, who amassed a vast record of evidence that Texas mapmakers diluted the votes the votes of Hispanic residents.

What may be most remarkable about Monday’s decision in Abbott v. Perez, however, is Justice Neil Gorsuch’s effort to position himself as a fierce opponent of the Voting Rights Act. The Supreme Court already gutted a central provision of the VRA in 2013’s Shelby County v. Holder. Now, in Perez, Gorsuch has joined Justice Clarence Thomas’ crusade to hobble the law even further by holding that it does not prohibit racial gerrymandering. Were the court to adopt Gorsuch’s interpretation, the VRA could never again be used to stop racist mapmakers from diluting minority votes.

The VRA was designed to enforce the 15th Amendment’s bar on racial voter suppression in several ways. Its most effective tool allowed the federal government to block suspect voting laws in states with long histories of racial discrimination—but SCOTUS disabled this provision in Shelby County. Luckily, a different part of the VRA, Section 2, forbids any “standard, practice, or procedure” that “results in the denial or abridgement” of the right to vote “on account of race or color.”

For decades, the Supreme Court has held that Section 2 outlaws gerrymanders that dilute the votes of minority citizens. This rule makes good sense, as these gerrymanders plainly constitute a “practice” or “procedure” that would “abridge” minorities’ right to vote. The court has explained that vote dilution occurs when mapmakers limit a minority group’s ability to translate its voting strength into voting power, drawing district lines to ensure that white voters can select its preferred candidate. Typically, mapmakers pack as many minority voters as possible into a few districts, then distribute the rest through majority-white district. As a result, minorities are deprived of an equal opportunity to participate in the electoral system.

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Perez revolves around this principle. In 2017, a federal district court ruled that Texas had, indeed, diluted minority votes in violation of the VRA. The court held that the state could have evenly spread Hispanic voters through a number of compact districts, giving them a real chance to elect their candidate of choice. Instead, Texas packed Latinos into a handful of bizarrely shaped districts, then distributed the rest throughout majority-white districts. As a result, most Latinos had no genuine opportunity to elect their preferred candidate—in effect, helping the mostly white Republican majority entrench its electoral power. It was, the court found, a textbook case of vote dilution.

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In a brief concurrence, Justice Thomas explained that he would’ve gone farther that Alito. Rather than reject the plaintiffs’ VRA claims, he wrote, the court should have overturned decades of precedent to hold that the VRA does not prohibit racial gerrymandering at all. Thomas has argued this point for years, often joined by Justice Antonin Scalia. On Monday, Gorsuch took up the mantle, conspicuously signing onto Thomas’ assertion that the VRA allows mapmakers to dilute minority votes.

It is difficult to overstate how devastating this theory would be if it ever gained majority support on the Supreme Court. In theory, the Equal Protection Clause also bars race-based vote dilution. But those claims are vastly more difficult to win because challengers must prove racist intent, not just racist impact. Since legislators today have found ways to enact racist laws without leaving behind smoking gun evidence of their racial motivation, proving intent has become an almost impossibly high bar under most circumstances. The Thomas/Gorsuch position, then, would give states a free pass to gerrymander away the voting power of minorities, so long as they dressed up their intentions with sufficient pretext.

Gorsuch is, in many ways, the central figure in Perez. In September 2017, he provided the fifth vote to preserve Texas’ racial gerrymander through the next elections. Now he has once again furnished the fifth vote to uphold virtually of Texas’ racist map. And in the process, he has declared war on the VRA, inviting future challenges designed to sabotage the law’s ability to guard against racial vote dilution.

 

 

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