by Andrew Levison
TDS Strategy Memos
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By Ed Kilgore
June 9: Democrats Could Gain House Seats After Surprise Supreme Court Redistricting Decision
It’s been a while since the current Supreme Court has surprised us in a good way. So I was happy to write about it at New York:
In a welcome surprise to voting-rights advocates, the U.S. Supreme Court struck down an Alabama congressional map on Thursday. In a 5-4 decision, the Court ruled in Allen v. Milligan that the Republican-controlled legislature violated Section 2 of the Voting Rights Act of 1965 by failing to draw a second majority-Black district in the state, though the state’s Black population is large enough and compact enough to do so.
The majority opinion was written by Chief Justice John Roberts, who is notorious for his past work in eroding voting-rights protections; ten years ago, the Roberts-led Court gutted Section 5 of the VRA, which required federal “pre-clearance” of state voting and redistricting decisions in states with a history of racial discrimination. But the bigger surprise was a concurrence in the decision by Justice Brett Kavanaugh, who joined four other conservative justices to set aside a lower-court decision that would have forced Alabama to create a new map before the 2022 midterms. Kavanaugh and Samuel Alito’s concurring opinion in this “shadow docket” decision emphasized the idea that the Court shouldn’t intervene in such cases close to elections. At the time it seemed that might have just been an excuse to disguise Kavanaugh’s malign attitude toward applying the VRA to redistricting cases. But now it appears he meant what he said, at least in this case.
Ultimately Roberts and Kavanaugh joined the three liberals on the Court in upholding a 1985 precedent (Thornburg v. Gingles) providing a test for determining Voting Rights Act violations in redistricting cases. In a bitter dissent, Justice Clarence Thomas accepted Alabama’s plea that the Court reverse Gingles and eliminate redistricting as an object of VRA enforcement. Thomas blasted the decision as “yet another installment in the ‘disastrous misadventure’ of this Court’s voting-rights jurisprudence” and argued for a “color-blind” approach to cases involving alleged discrimination.
The immediate effect of the decision in Allen v. Milligan will be to overturn an Alabama map that led to the election of six white Republicans and one Black Democrat to Congress. The state will be forced to create a second majority-Black (and very likely Democratic) district in the state’s Black Belt region in time for the 2024 elections. This is bad news for the Republican Party, which will be struggling to hold on to a narrow House majority. Even worse for the GOP, this decision may pave the way for fresh challenges to congressional maps in Georgia, Louisiana, and possibly other states. And there could be ripple effects in local politics and government, as the Brennan Center noted last year:
“[S]ince the Supreme Court laid out the Gingles test nearly four decades ago, Section 2 has played a far more transformative role in ensuring that voters of color have equal opportunities to participate in the political process and elect their candidates of choice at the local level than it has at the congressional or legislative levels. Just this past decade, for example, Section 2 litigation opened the door for the first time to Black representation on the city council and school board in sharply racially divided Ferguson, Missouri.”
More generally, by maintaining judicial scrutiny of racial gerrymandering, the fragile Court majority declined to give full rein to lawmakers determined to abuse their power in drawing maps for the U.S. House and for themselves. The Supreme Court has already taken the federal courts out of the business of policing partisan gerrymandering. So going forward, you can expect the Republicans who rely on marginalizing minority voters in order to hold on to power to work overtime to deny or hide racial calculations.