The Supreme Court has twice gutted major portions of the Voting Rights Act in recent years. On Monday evening, it signaled its intent to do it again.
The Court’s order puts on hold a lower court decision finding Alabama’s new congressional maps invalid under the Voting Rights Act. A three-judge district court—composed of two judges appointed by President Donald Trump and one appointed by President Bill Clinton—had ruled unanimously that Alabama lawmakers diluted the strength of minority voters by failing to draw an additional “majority-minority” congressional district, that is, a district where a majority of the residents identify as racial minorities. Alabama’s population is 27 percent Black, but the map’s seven congressional districts had only one that was majority-minority. The lower court opinion, which spanned over 200 pages, found that this allocation of voters diluted the power of Black Alabamians. With its 5–4 ruling, the Court, in putting this lower court decision on hold, ended any possibility that Alabama’s map will have two majority-minority districts for the 2022 midterm elections. It also indicated that conservative justices will likely once again change the law to curtail the Voting Rights Act, the crown jewel of the civil rights movement.
This decision is harmful for Alabama’s voters, but it will also have widespread effects. First, the ruling suggests that the Court will likely upend redistricting law surrounding Section 2 of the act, a nationwide provision of the 1965 statute that bars any voting laws that result in racial minorities having “less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” The Court’s decisions on Section 2, as applied to redistricting, are well settled. Or so we thought.
The Alabama lower court faithfully applied this precedent, as even Chief Justice John Roberts—who wrote the opinion in 2013 that severely cabined a different portion of the act—acknowledged in his dissent on Monday. (He joined the Court’s liberals on Monday in saying they should let the lower court’s ruling stand for now, but he also declared that the Court should eventually hear the case to reconsider the law surrounding Section 2.) Alabama itself didn’t really argue that the lower court had misconstrued precedent; it just didn’t like how that precedent would apply to its new map. The Court has now revealed that, once it hears the case in full, it will probably overturn that precedent and set new, narrow standards for challenging a redistricting map that harms minorities.
Second, the separate concurring opinion by Justice Brett Kavanaugh, joined by Justice Samuel Alito, claimed that the lower court’s opinion requiring the state to draw a new legal map was too close to this year’s elections. Invoking the so-called Purcell principle, which says courts generally should not change election rules too close to an election for fear of confusing voters, Kavanaugh posited that the lower court’s opinion must be put on hold so the state can plan for the 2022 midterms. Never mind that the primaries in Alabama are not until May and the November general election is nine months away. Moreover, the Purcell principle typically applies for rules about casting ballots, not redistricting plans where the state could easily and quickly redraw the map in a way that does not violate the Voting Rights Act. If courts cannot protect voters four months before a primary or nine months before a general election because that is “too close” to the election, then it is unclear when a court ever could step in. As Justice Elena Kagan wrote in dissent, “Alabama is not entitled to keep violating Black Alabamians’ voting rights just because the court’s order came down in the first month of an election year.”
Even more brazenly, Kavanaugh suggested that if the Supreme Court ultimately affirms the lower court’s decision that the map is unlawful, it would be no big deal because new maps would then be required for subsequent elections. The underlying message: It’s okay to harm minority voters for at least one election cycle.
This decision is another in which the Court’s conservative majority simply defers to incumbent politicians in their voting rules. Of course, the politicians in power are the last people who should enjoy deference, as they have every incentive to pass election rules to help keep themselves in power.
The order continues to dismantle the vital protection of the Voting Rights Act. In 2013, the Court in Shelby County v. Holder cut off the preclearance formula, which forced certain states with a history of discrimination in voting to seek preapproval for new voting laws or procedures. Last year, in the Brnovich v. DNC decision, the Court narrowed Section 2 of the Voting Rights Act as applied to rules on voting, creating new standards out of thin air to make it harder for plaintiffs to win these cases. The Alabama case will complete a disheartening trilogy.
The Supreme Court is on the wrong side of history. The conservative justices’ undue deference to state legislators is wholly inappropriate for voting laws. Instead of robustly protecting the right to vote, the majority seems intent on being as activist as possible. They are toppling settled precedent and narrowing long-established voting rights protections. Voters—especially racial minorities—are once again their unfortunate victims.