'Conservative' Justices Rewriting Voting Rights Act

             The Supreme Court’s conservative majority took another bite out of the federal Voting Rights Act last week [Feb. 7] when it cleared the way for the state of Alabama to put into effect a congressional redistricting plan that a lower federal court found to consist of racial gerrymanders that improperly diluted the influence of minority voters.

            To his credit, Chief Justice John G. Roberts Jr. dissented along with the three liberal justices – Breyer, Sotomayor, and Kagan – in granting the state’s application to stay the injunction issued by a three-judge federal court two weeks earlier. The three judges on the panel—one Florida Republican appointed to the federal bench by President Clinton in 1997, and two Alabama Republicans appointed by President Trump – all agreed that the redistricting plan drawn by the state’s Republican-majority legislature violated the act by creating one but not a second majority-black congressional district.

            With seven congressional districts, Alabama has had only one black member of Congress since Reconstruction, a black Democrat elected from a majority black district created in 1993 under a federal court order. Alabama’s voting-age population is roughly 27 percent black, enough to create two districts in which black voters would have the opportunity to elect a representative of their choice.

            In his dissenting opinion in Merrill v. Milligan, Roberts found that the three lower-court judges “properly applied existing law in an extensive opinion with no apparent errors for our correction.” Roberts went on by citing the well-established precedent on minority vote dilution,  Thornburg v. Gingles (1986). Under that ruling, a minority group is entitled to a minority opportunity district if it can “demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single-member district.”

            To avoid creating a second majority-black district, the Republican redistricters engaged in the familiar practice known as “packing and cracking” minority voters. They packed black voters into the existing seventh district to give the district a black supermajority of nearly 70 percent, more than enough even against the historic pattern of racially polarized voting in Alabama. Other majority-black communities were “cracked” – that is, they were spread among three majority-white districts in central Alabama, with no chance to elect representatives of their choice.

            The five justices in the majority – Thomas, Alito, and Trump’s three appointees, Gorsuch, Kavanaugh, and Barrett – provided no full explanation for staying the lower-court injunction to allow this year’s congressional elections to be conducted according to a plan found to violate the Voting Rights Act. In a written opinion, however, Kavanaugh, joined by Alito, said he based his vote on the so-called Purcell principle, a rule derived from Purcell v. Gonzalez (2006) that cautions federal courts against ordering changes in state election law close to an election.

            In this case, the district court issued its injunction blocking the racial gerrymanders nearly nine full months before the November election and two months before the qualifying deadline for candidates in primary elections. In Kavanaugh’s estimate, the time frame was too close to allow election administrators to redraw voting precincts and prevent chaos and confusion for voters and candidates. In its ruling, the district court flatly rejected the Purcell issue. “This case is not like Purcell because we are not ‘just weeks before an election,’” the court wrote, quoting from the Supreme Court precedent.

Kavanaugh did not compare the risks of “chaos and confusion” to the loss of federally protected voting rights for Alabama’s black voters. Nor did he note that in applying for a stay, the state did not contend that it was impossible to redraw congressional districts in an orderly fashion for this year’s elections.

Kavanaugh noted, however, that the redistricting plan could be redrawn in time for the 2024 election. In short, Kavanaugh found little harm in conducting one round of congressional elections under a plan that tramples on the rights of Alabama’s black voters. Writing for the three liberal justices in dissent, Kagan answered Kavanaugh’s disregard in a blistering passage.

“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,” she wrote. The Court’s decision to grant the stay, Kagan continued, “does a disservice to the District Court, which meticulously applied this Court’s longstanding voting-rights precedent. And most of all, it does a disservice to Black Alabamians who under that precedent have had their electoral power diminished—in violation of a law this Court once knew to buttress all of American democracy.”

Liberal justices have been in futile dissent in two prior 5-4 decisions that gutted essential provisions of the Voting Rights Act. In the first of those decisions, Shelby County v. Holder (2018), Roberts led five Republican-appointed conservatives in nullifying the act’s preclearance provision that required states and localities with histories of racial discrimination in voting to obtain approval for any changes in election laws or procedures.

In a more recent decision, Brnovich v. Democratic National Committee (2021), Alito led five conservatives, including Roberts, in neutering a Voting Rights Act provision that Congress added in 1982 to prohibit any election law or practice that had a disparate impact on voting rights for minority voters. Plaintiffs in the case showed with statistical proof that two policies Arizona had adopted hampered the ability of minority voters, particularly Indians living on tribal reservations remote from post offices and most voting places. Alito found instead that the practices were not adopted intentionally to discriminate against minority voters and, on that basis, did not violate the act’s “disparate impact” test.

            In advance of President Biden’s pending Supreme Court nomination, one Republican senator has warned that Biden must avoid nominating a justice who will “legislate from the bench.” For now, however, it is professed conservatives on the Court who are legislating from the bench by rewriting a law that none of them ever liked anyway.