In Rucho v. Common Cause and Lamone v. Benisek in 2019, the U.S. Supreme Court ruled that federal courts have no jurisdiction to review partisan gerrymandering cases, greenlighting the extreme gerrymandering that we have seen since the 2020 Census. But the court noted that federal courts do have jurisdiction to review racial gerrymamdering cases.
Supreme Court reporter Ian Mihiser warned recently, A new Supreme Court case could make it nearly impossible to stop racial gerrymanders:
The Supreme Court is likely to hand down a decision soon in Merrill v. Milligan, a case where the worst-case scenario for democracy would neutralize one of the few remaining prongs of the Voting Rights Act that the Court has not yet dismantled.
The case concerns Alabama’s new congressional districts, and whether they violate the Voting Rights Act’s prohibitions on racial gerrymanders. Days before the state of Alabama asked the justices to carve another chunk out of America’s voting rights laws, a three-judge panel ordered the state of Alabama to redraw its congressional maps. Notably, two of the judges on this panel were appointed by former President Donald Trump.
Among other things, the panel’s opinion in Singleton v. Merrill explains that Black Americans make up about 27 percent of Alabama’s population, but they would only have a real shot of electing their candidate of choice in one of the state’s seven congressional districts under the new map based on the 2020 census. Thus, while Black Alabamans represent more than a quarter of the state’s population, they only control 14 percent of the state’s congressional delegation.
The lower court ordered the state legislature to redraw the map, relying on a provision of the Voting Rights Act banning racial gerrymanders. To reach that decision, the three judges spent 225 pages walking through the exceedingly complicated test announced in Thornburg v. Gingles (1986), which asks whether a state election law that imposes a disproportionate burden on racial minorities “interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by [minority] and white voters to elect their preferred representatives.”
As I’ve written, the legal rule that the Court announced in Gingles — which governs many redistricting cases filed under the Voting Rights Act — is a mess. It advises courts to weigh at least nine different factors. And it would be reasonable for a state to ask the Supreme Court to come up with something less unwieldy to help lower courts sort through these sorts of cases. Alabama could have gone this route, and if it had proposed a reasonable modification to the Gingles test, it’s possible that such a modification could have helped them defend their maps.
But Alabama does nothing of the sort in the Merrill case. Instead, it proposes a new rule that, if adopted by the Supreme Court, could effectively make it impossible to challenge a racial gerrymander in federal court.
At one point, for example, Alabama quotes favorably from a 1994 opinion by Justice Clarence Thomas, which was joined only by one other justice, in which he suggests that no voting rights violation occurs even if a state gerrymanders its districts to make it impossible for racial minorities to elect their preferred candidate. Under this theory, “minorities unable to control elected posts would not be considered essentially without a vote; rather, a vote duly cast and counted would be deemed just as ‘effective’ as any other.”
This would gut the last remaining protection from the Voting Rights Act of 1965, as amended.
The state’s primary argument, meanwhile, would trap voting rights plaintiffs in a kind of Catch-22.
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Alabama’s brief to the Supreme Court, however, faults the Merrill plaintiffs for paying too much attention to race when they produced the sample maps demonstrating it is possible to draw two compact, majority-Black districts. To produce these maps, the state claims, the plaintiffs “must necessarily prioritize race first and consider other race-neutral factors second.” Alabama claims that map-makers must be absolutely forbidden from giving such a priority to racial concerns — even if they only do so to produce hypothetical maps which prove it is theoretically possible to draw two Black-majority districts.
It’s a stunning argument. Again, Cooper effectively requires these plaintiffs to produce sample maps where at least two districts have Black majorities. How is that even possible unless whoever produces these sample maps prioritizes race while drawing them? It’s like asking an artist to draw a picture of an elephant without ever permitting them to look at an elephant.
Indeed, if Alabama’s proposed rule were adopted by the Supreme Court, it’s unclear whether any similar racial gerrymandering lawsuit could prevail — or even get past the threshold of inquiry demanded by Cooper.
On Monday night the five radical Republicans on the Supreme Court ruled on a preliminary motion – a “shadow docket” ruling – that leaves the Alabama map in place for the 2022 election based upon the Purcell principle (it’s too close to the election to make any changes), while sending a clear signal that the five radical Republicans are leaning towards Clarence Thomas’ radically wrong opinion from 1994.
Amy Howe at SCOTUSblog reports, In 5-4 vote, justices reinstate Alabama voting map despite lower court’s ruling that it dilutes Black votes:
The Supreme Court on Monday allowed Alabama to implement a redistricting plan that is being challenged as illegal racial gerrymandering. A lower court ruled last month that the state’s new congressional map likely violates the Voting Rights Act, and it ordered the state to draw a new map. But the Supreme Court in a 5-4 decision put the lower court’s ruling on hold, effectively allowing Alabama to proceed with its preferred map as it prepares for primary elections in May.
[O]n Jan. 24, a three-judge district court – made up of two district judges appointed by President Donald Trump and a court of appeals judge appointed by President Bill Clinton – ordered the state to draw a new map. The court agreed with the challengers that the plan likely violates Section 2 of the Voting Rights Act, which bans racial discrimination in voting policies. The court explained that the state’s legislature should have the first chance to draw a redistricting plan that includes two majority-Black districts, rather than just one, and it gave the state two weeks to do so. But if the legislature can’t get the job done in time, the court continued, it would hire an expert to draw a new and improved map.
On Jan. 27, the three-judge court turned down the state’s plea to put its order on hold while the state appealed. Calling the state’s request “effectively an unsupported motion for reconsideration,” the court characterized the case as a “straightforward Section Two case, not a legal unicorn.” And it stressed that its decision to grant a preliminary injunction “rests on an extremely robust body of evidence” created by a seven-day hearing featuring testimony from 17 witnesses and over 1,000 pages of briefing. The question of whether the challengers are “substantially likely to succeed on the merits of their Section Two claims” is not, the court concluded, “a close one.”
But, but, the five radical Republicans on the U.S. Supreme Court who legislate far-right positions from the bench! They do not care about the facts, the rule of law, or judicial precedent – they are outcomes based.
The state came to the Supreme Court the next day, asking the justices to freeze the district court’s order while it appeals. In a brief order on Monday, the court granted that request and set the dispute for oral argument sometime next fall. [Next term.]
Justice Elena Kagan wrote a 12-page dissent that was joined by Justices Stephen Breyer and Sonia Sotomayor. She emphasized that normally a litigant asks the Supreme Court to freeze the lower-court order because it believes that the lower court got the law wrong. But here, she said, “[a]ccepting Alabama’s contentions would rewrite decades of this Court’s precedents about Section 2 of the Voting Rights Act.” If the court is going to make these changes, she stressed, it should do so after full briefing and oral argument, not on the so-called “shadow docket.” In Kagan’s view, the district court properly applied existing law. Putting its ruling on hold, she wrote, “forces black Alabamians to suffer what under that law is clear vote dilution.”
Chief Justice John Roberts also dissented from the court’s decision to put the lower court’s order on hold, although he did not join Kagan’s opinion. Instead, Roberts noted the uncertainty that surrounds what litigants must currently show for a vote-dilution claim. To clarify the law, Roberts wrote, he would hear oral argument in this dispute over the map, but he would not put the district court’s order on hold because it is, in his view, consistent with current voting-rights laws. Therefore, he concluded, the district court’s analysis should govern the 2022 election, while “subsequent elections would be governed by” the Supreme Court’s ruling in this case.
This is Justice Roberts’ incrementalism, “all in due time, all in due time.” In the end this lifelong opponent of the Voting Rights Act almost certainly will side with the five radical Republicans, because he is also a radical Republican and destroying the Voting Rights Act is his lifelong mission. Chief Justice Roberts’s lifelong crusade against voting rights, explained.
Justice Brett “I like beer” Kavanaugh responded to Kagan’s dissent with his own concurring opinion, which was joined by Justice Samuel Alito. Kavanaugh pushed back against Kagan’s suggestion that Monday’s order changes voting rights law. Instead, he countered, it simply puts the district court’s order on hold until the Supreme Court can review it.
Freezing the district court’s order is also consistent, Kavanaugh added, with the election-law doctrine known as the Purcell principle – the idea that federal courts should not change state election rules shortly before an election. “Running elections statewide is extraordinarily complicated and difficult,” Kavanaugh observed. The district court’s order, he wrote, “would require heroic efforts by” election officials “in the next few weeks – and even heroic efforts likely would not be enough to avoid chaos and confusion.”
Kagan in turn disputed Kavanaugh’s contention that it was too late to require Alabama to redraw its maps. The Alabama legislature, she noted, enacted the current map in less than a week and can move quickly again if it wants to. But in any event, she continued, the state’s primary is still four months away, while the general election is nearly nine months away.
Rick Hasen at Election Law blog explains, Breaking and Analysis: Supreme Court on 5-4 Vote Stays District Court Order Requiring Alabama to Draw Second Black Majority District, and the Signs for the Voting Rights Act are Ominous:
The Supreme Court issued a stay in the Alabama congressional Voting Rights Act case I wrote about last week and set the case (actually two related cases) for argument. This is bad news in the short run and likely worse news in the long run on two counts for voting rights plaintiffs.
In the short run, this is bad news because it means that Alabama will not be forced to create a second majority-minority district in time for the 2022 elections. This case will be argued I guess later this term, or maybe even next term and decided at least after primaries are held under Alabama’s preferred lines. So at best this is justice delayed.
But the signs are really ominous on two fronts. First, on the Voting Rights Act front, we could well see the serious cutbacks in voting rights law I wrote about in my post last week. Chief Justice Roberts dissented from the stay order but not the order setting these cases for argument. He reasoned that a stay was not warranted because the lower court fully followed existing law on how to apply the VRA to redistricting. But he said the law is a mess and the case should be set to reconsider the law. Put Roberts together with the 5 other conservative Justices in the majority that voted to both grant the stay and to hear the cases and there could be six votes that would read the VRA in redistricting in a horrible “race blind” way that Nick explained here and that Justice Kagan discussed today in her dissent. This could be a radical reworking of the VRA that would decrease minority representation, especially in the south.
Second, this case is really ominous in terms of federal courts accepting the Purcell Principle on steroids. This is a special rule in election cases that says federal courts should not make changes close to an election because it can cause voter confusion. The Court has been relying on it more and more to shut down important election law changes and point to this supposed technical rule. This is a serious extension to apply this in redistricting, where the court could have moved the primary and things could be month away. This Purcell creep is more Supreme Court meddling on the shadow docket, despite Justice Kavanaugh’s protests to the contrary in his concurring opinion today. He says the right thing that I’ve argued (that Purcell is not a separate rule but a special set of considerations in election cases to be considered along with other traditional stay factors) but doesn’t apply it fairly.
As I’ve said many times, these days, the last place you want to be with a voting rights case is before the U.S. Supreme Court.
As David Lurie says at The Daily Beast, The Supreme Court Is Democracy’s Enemy Now (subscriber content).