When the Supreme Court issued its ruling in Louisiana v. Callais, in late April, gutting what remained of the Voting Rights Act of 1965, it insisted, unconvincingly, that it was merely offering an “update,” clarifying the precise standards for determining violations of the law. Last week, the Court issued an unsigned order in a long-running case involving congressional redistricting in Alabama that exposed that obvious fiction. The four-page order, issued on the Court’s emergency, or shadow, docket, makes clear that Section 2 of the Voting Rights Act—which is supposed to protect against voting procedures, such as drawing skewed district lines, that have the intent or effect of discriminating against racial minorities—is a dead letter. There remains no feasible route, under the Voting Rights Act or the Constitution, to challenging district lines that prevent Black voters from electing candidates of their choice.
For years, Alabama had balked at obeying a series of orders, including from the Supreme Court itself, to insure that its Black voters have a voice in how they are governed. The conservative Justices rewarded this strategy, rebuking not Alabama but the lower court for not being deferential enough to a state that had repeatedly demonstrated its determination to delay and obstruct. And, despite repeated lectures about the danger of changing voting rules too close to an election, the Court in effect invited state legislatures to do precisely that. It has produced a system impenetrably rigged against the voters that the law was supposed to protect.
More than a quarter of Alabama’s residents are Black, but, with the Court’s intervention, just one of the state’s seven congressional districts is likely to be held next year by a Black representative. This outcome will be no accident. The lower court—some disputes under the Voting Rights Act are heard by a three-judge panel—repeatedly found that, in redrawing congressional districts in the aftermath of the 2020 census, Alabama lawmakers intentionally discriminated against Black voters. In the lingo of redistricting, they “packed” one majority-minority district with Black voters and “cracked” the rest among three other districts. To fix the problem, the court instructed Alabama to create a second majority-minority district. This conclusion was no ideologically driven result: the three judges include two appointed by President Donald Trump during his first term, and a Bill Clinton nominee.
Then came the Louisiana decision. Alabama, backed by the Trump Administration, raced back to the lower court to ask that it be allowed to use its preferred map. The three-judge panel refused, emphasizing its finding that the line-drawing not only had the effect of disadvantaging Black voters (as in Callais) but was “tainted by intentional race-based discrimination.” Under the Supreme Court’s precedents, such determinations should be reversed only where there has been “clear error” by the lower court. In other words, the lower court’s conclusions prevail so long as they are “plausible” and supported by the record—in this case, an eleven-day trial that featured fifty-one witnesses and nearly eight hundred exhibits. That didn’t deter the conservative Justices. The panel, the Court said, “did not heed the presumption of legislative good faith” in finding intentional discrimination, and failed to make certain that all the state’s legitimate interests in drawing district lines were accommodated. (For example, the legislature had said it wanted to make sure that Gulf Coast communities with “French and Spanish colonial heritage” were kept together. It was silent about the descendants of formerly enslaved people living in the state’s Black Belt, named for the region’s fertile soil.) In addition, the Court said, the panel should not have cited the impending primary election in determining that it would create fewer problems to use the court-ordered map: “While federal courts should not impose changes close to an election, States are free to decide for themselves whether last-minute changes to an election are in their best interests.”
Justice Sonia Sotomayor, in a dissent joined by Justices Elena Kagan and Ketanji Brown Jackson, blasted this reasoning. “Before the Court are two paths,” Sotomayor wrote. “Down one lies an orderly election, held under a tried-and-tested congressional map that protects Black Alabamians’ right to vote and with which all voters, elections officials, and candidates alike are familiar. Down the other lies a chaotic election, held under a never-before-used congressional map that intentionally discriminates against Black Alabamians, that Alabama adopted in unashamed defiance of a prior court order directly affirmed by this Court, and that will require officials to change the voter registrations of hundreds of thousands of voters in just days at best.” The Court’s order, she added, “debases the democratic process by upending Alabama’s entire election in the name of permitting Alabama to discriminate against Black Alabamians. It also corrodes the rule of law by rewarding Alabama’s gamesmanship and outright defiance of court orders.”
The majority’s contortion of the Purcell principle may be the most disturbing aspect of its order. Recall that in 2022, with voting set to begin in seven weeks, Kavanaugh, in siding with Alabama, claimed that it would be intolerably disruptive to redraw district lines in order to avoid discriminating against Black voters. This time around, the time line is even more compressed. After the Louisiana ruling, Alabama cancelled its May primary in the four affected congressional districts, voided the early votes that had already been cast, and set a new primary for August 11th, with early voting to start on June 17th. Accurately reassigning voters to the redrawn districts is no easy task; to get this work accomplished, Alabama elections officials testified, would ordinarily take three to four months. In fact, Alabama’s director of elections, Jeff Elrod, said the work would need to be finished by June 2nd—as it happened, the date on which the Supreme Court issued its order. As Sotomayor pointed out, “concerns about the administrative burdens associated with ‘the last-minute reassignment of hundreds of thousands of voters to new districts,’ have apparently melted away.” The danger of chaos, it appears, depends on who suffers the consequences, and who will benefit. ♦
