Redistricting Update: In Alabama Case, SCOTUS Signals the Coming Demise of the Voting Rights Act
February 9, 2022
Recently, a three-judge District Court panel struck down the Alabama redistricting map and ordered it to redraw with two majority-minority districts. The state currently has one such district, but population change revealed by the 2020 Census supports the creation of an additional district. In doing so, the District Court issued a stay (injunction) against the implementation of the state’s map. On Monday, the US Supreme Court, in an ostensibly procedural decision, revoked the stay and ordered that the for the 2022 election the state should use its map, which of course is as much a substantive decision as any “on the merits” decision.
Although every seat counts where the House and Senate margins are so close as they are now, Alabama did not lose a seat as was expected in the 2020 reapportionment. Considering the big swings we are have seen in Ohio, New York, Illinois, and North Carolina (among others) redistricting, it would seem what happens in Alabama is not that important. Not true. While it surely matters to Alabamians, particularly the 27% of the population that is Black and can only reasonably expect to be competitive in one of seven districts (or 14% of the seats), this case may be important as to whether we have a functioning Voting Rights Act afterwards.
This case should be a simple one. Alabama’s map violates the section 2 of the Voting Rights Act by “packing” as many Black voters as it can into one district while “cracking” the rest as a minority of voters throughout several others even though two majority-minority districts can be created. Even the state did very little to defend itself, arrogantly having an “expert” testify at trial who could not even answer many questions and who the judges found not trustworthy. Alabama’s only argument seems to be that the plaintiffs cannot use race to determine whether the state’s map is racially discriminatory. Sounds ridiculous, but that did not stop the right wing majority on the US Supreme Court from saying, “this sounds reasonable to us.” The decision was conducted through the shadow docket, a process designed for actual emergencies (like last minute death penalty petitions) that the right wing justices now use to decide cases without argument while hiding what they are doing from public scrutiny.
There was no majority opinion in this case as the Court was apparently going overturn the stay without comment. That is, until Justice Elena Kagan decided to write a dissent (Chief Justice John Roberts wrote a dissent as well). That triggered Justice Brett Kavanaugh to writing what is officially a concurring opinion in support of the decision. Kavanaugh’s opinion is a clear attempt to gaslight the public with a seemingly neutral and normal decision to proceed carefully and resolve the issues deliberately in time for the 2024 election. The gaslighting here is the depiction of this case as complex and controversial rather than as a clearly illegal redistricting in which the District Court already heard all the information, the state was the one that delayed the case (not the plaintiffs or the district court), and there is still plenty of time for the state to implement a new map this year. Is it possible that one or two conservative justices will side with Roberts and the liberals when a decision on the merits comes? Sure, it is possible. But it’s not likely. And the reason for that is found in Kagan’s dissent.
Kagan lays out why this simple, “neutral” decision to let the state’s racist map go into effect is actually changing the law. To understand this, we have to review what it means for a court to order injunctive relief.
In our system, courts typically order legal remedies (money) rather than equitable remedies (injunctions or stays). This goes back hundreds of years in English legal history in which common law courts did not have the authority to order anyone to do or refrain from doing something. Gradually, equity courts came into existence in which claimants could get injunctive relief to prevent someone from damming your creek or things like that. Equitable relief is available in American courts today, and there is a general formula that courts apply when someone petitions for an injunction.1
First, the petitioner must demonstrate a likelihood of success on the merits. Second, the court must balance the equities (i.e., is it fair to issue the injunction?). Third, the petitioner must show it will suffer irreparable harm should the injunction not be granted.
What’s at issue here is the little-known, but important case of Thornburg v. Gingles, 478 U. S. 30 (1986). To satisfy the first prong of the injunction analysis, the petitioner must demonstrate a likelihood of success on the merits. In this case, the merits concern whether or not Alabama has violated section 2 of the Voting Rights Act. To understand whether it has, courts apply the “Gingles conditions” to see if at least a prima facie case for a violation is met.
The specific problem here is known as “vote dilution.” This is what happens when one group of voters is disadvantaged through the redistricting process so that other groups have votes that carry more weight, usually because they have an unfair advantage in their chances of being successful at electing representatives of their choice compared to the disadvantaged group. While the Supreme Court has held that partisan gerrymandering is a political question that cannot be resolved by federal courts2, racial gerrymandering is not permissible.
Kagan’s dissent is worth quoting at length (Dissent at 3-4):
The Court’s longstanding precedent imposes strict requirements for proving a vote-dilution claim. To start, plaintiffs must satisfy three conditions, often referred to as the Gingles conditions. Those conditions are: (1) that the “minority group is sufficiently large and geographically compact to constitute a majority” in a district, (2) that the minority group “is politically cohesive,” and (3) that the “white majority votes sufficiently as a bloc to enable it . . . usually to defeat the minority’s preferred candidate.” Growe v. Emison, 507 U. S. 25, 40 (1993) (quoting Thornburg v. Gingles, 478 U. S. 30, 50–51 (1986); alterations omitted). If plaintiffs satisfy those conditions, they must then show that a Section 2 “violation has occurred based on the totality of the circumstances.” Bartlett v. Strickland, 556 U. S. 1, 12 (2009) (plurality opinion). Those circumstances include the history of race-based discrimination in the State (especially as to voting rights), the extent to which voting is racially polarized, and the extent to which minority candidates have struggled to get elected to public office. See Gingles, 478 U. S., at 36–37, 44–45.
Under our precedent, plaintiffs have long satisfied the first Gingles condition—the only condition at issue in Alabama’s stay application—by showing that another “reasonably compact” majority-minority district can be drawn, consistent with “traditional districting principles.” See, e.g., League of United Latin American Citizens v. Perry, 548 U. S. 399, 430, 433 (2006) (LULAC). Those principles include—in addition to compactness—contiguity, respect for existing political subdivisions, and the desire to keep together existing communities of interest.2 See id., at 433; Alabama Legislative Black Caucus v. Alabama, 575 U. S. 254, 272 (2015).
What Alabama argues is that the plaintiffs have to show a “non-race conscious” map that will create two majority-minority districts in the state. I hope you can already see the problem here, and how it is in fact new law.
First of all, it is not possible to create maps that remedy racial discrimination through an approach that will not take race into account. If you cannot accept why this is not possible, instead of thinking of race, think of fairness. Try to create a map in your head of a state that has seven districts in which dogs and cats are fairly represented. Dogs are more populous than cats but cats live in all parts of the state. Dogs have a long history of denying cats the right to vote in the state, often experimenting with new voting obstacles when the old ones are struck down by courts. Dogs hold all elective office in the state (except for the one Congressional District they are packed into for representative purposes), even though cats make up more than a quarter of the population. There are some areas where there are a lot of cats and some where there are a lot more dogs. Now, try creating a reasonable and fair map - one that gives cats a chance (not a certainty, but a fair chance) to be represented in proportion to its population share - without taking into account such things as whether dogs are making the rules over objections from the cats, whether they have ever treated cats unfairly, or even if cats are being treated unfairly today. Sure, you could create some map - one that gives cats no seats or one that gives them all seven seats - but it would not be evidence-based. It would be just a fantasy about how you wish the world worked.
Second, this argument creates entirely new law that the Supreme Court is implementing disingenuously though the shadow docket. Without this argument for an entirely new standard, there would be no contest to the plaintiff’s position. Despite how much Kavanaugh pleads with us to accept this is merely a procedural decision that sheds no light on the merits, the majority is accepting that Alabama’s new standard defeats the plaintiff’s claim of likelihood of success. Doing so tells us that the majority is so close to accepting this argument that it is upending the decision of the three-judge District Court panel to ensure that current law is prevented from being enforced. Kavanaugh seems to realize this is not persuasive, so his opinion does two things. Consistent with his reputation as, frankly, an entitled jerk, he belittles Kagan’s dissent with the typical projection we see operative in right-wing politics today: attacking her dissent as if it is littered with rhetoric simply designed to throw red meat to liberal audiences. A quick read of her dissent shows it not only professional, but much better argued than Kavanaugh’s concurring opinion. It is Kavanaugh who throwing red meat to conservatives in his opinion. The only thing he didn’t do is call Kagan’s position “woke.”
The other thing Kavanaugh’s opinion does is find another reason to revoke the stay, and it’s a cousin to the third prong of the standing analysis even though there is standing here. It is well-settled in American election law that courts should not intervene in elections to change the rules – even if on the merits it’s correct – too close to an election and where the petitioner had plenty of time to file an earlier complaint. Kavanaugh focuses on the former point: changing the map right now is too close to the election. That’s important because voters and candidates need clear playing fields and rules. But, here, Kavanaugh makes the point that it’s too late for the state to do it (this is the cousin of the third prong of the standing analysis: is it possible for the court’s order to accomplish what’s intended?). Both claims are nonsense.
There is still over a month until Alabamians start absentee voting for the primaries, which are in June. This is not a case where – like so many of the Trump lawsuits after the 2020 election – petitioners are complaining about the rules immediately before or after the election has occurred when they could have filed much earlier. In fact, the plaintiffs filed their suit as soon as the state publicly released the 2022 map last November. The court expedited the case to ensure the case was decided early enough for the 2022 election cycle. It was the state of Alabama that asked for delays. And even still, there is plenty of time to enforce the District Court’s order.
And it is also not true that the state could not implement a new map in the next month. Instead, what the majority is really doing is saying, “Hey, when we rule on the merits section 2 is going to be meaningless and Alabama can draw any map it wants.” That is where this is heading.
The language can differ slightly from state to state, but the concepts are usually the same.
This is true only for federal courts interpreting the US Constitution. States may - and have - passed laws making partisan gerrymandering illegal. Those state laws are constitutional at least at the moment. It’s difficult to say what this current US Supreme Court might do if Ohio or North Carolina petition the Court to review the decisions of its own state supreme courts in striking down partisan gerrymanders in those states.