On Tuesday, the US supreme court in its Merrill v Milligan decision, upheld Alabama’s racially gerrymandered congressional map, which see Black people represented in only 14% of congressional districts, despite making up about 27% of Alabama’s population. This ruling is reminiscent of the holding in the supreme court’s 1857 Dred Scott decision that Black people “had no rights which the white man was bound to respect”. Even though the two cases addressed two different situations, the overall disregard of the rights of Black people in America by the highest court in the country is the same.
And just as the Dred Scott decision laid the groundwork for similar rulings that led to the continuation of white political power at the expense of Black political power, so too does the Miller case lay the groundwork for ending voting rights and political power for Black people in this country and a path towards white political power at all levels of government.
Some reading this will gasp and accuse us of misusing an explosive pre-reconstruction case to make a racially charged argument. But the reality is that the conservative gang of justices, under the leadership of Chief Justice John Roberts, had already joined its pre-1954 brethren who had indoctrinated Jim Crow policies and the disenfranchisement of Black voters.
First through the supreme court’s abolition of section 5 of the Voting Rights Act (VRA) in the 2013 Shelby v Holder, another Alabama case, they empowered every Republican-controlled state to enact a series of voter suppression laws targeting Black people with surgical precision.
Next, through the 2018 Abbott v Perez case, the court took its first stab at the second protective tool in the VRA, section 2 by ruling to keep in place a blatantly racially gerrymandered map in Texas through what Justice Sonia Sotomayor called “a disregard of both precedent and facts at the cost of democracy”. Then again, in 2021, in the Brnovich v DNC case, the court finally took the knockout punch to the remaining power left in the VRA’s Section 2, by leaving two Arizona bills in place, which, as noted by Justice Elena Kagan in her dissent, “disproportionally affect minority citizens’ opportunity to vote”.
So, Tuesday’s Merrill case is just a link in a chain of US supreme court decisions meant to end Black voting protections and political power in this country. Even though Chief Justice Roberts did not join his usual comrades, he signaled in his dissent that he intends to shred what is left of Section 2 when the full case reaches the supreme court.
Moreover, by using the court’s shadow docket, the court has shown a greater sin in operation. While the conservative gang of six argue that they are simply staying the case because of the lower court’s ruling proximity to upcoming elections and not ruling on the merits of the case, Justice Kagan in her dissent makes it clear that the case “is one more in a disconcertingly long line of cases in which this court uses its shadow docket to signal or make changes in the law”. The conservative majority inappropriately stretched the meaning of “close election” to force the usage of a preliminary injunction standard found in Purcell v Gonzalez to create this unnecessary and hurtful outcome.
In using the shadow docket in this manner, the conservative gang are not operating as judges evaluating the constitutionality of laws in a neutral manner, but have ignored legal precedent and become a partisan weapon of the Republican party.
By allowing Alabama to use its racially gerrymandered congressional map to dilute Black voting power, the Republican party will continue to send six representatives to Congress next year instead of the five that would have probably resulted from fair maps. At a time when the Republican party is trying to take back power in the House of Representatives, it could not afford to lose a congressional seat in Alabama, and the conservative gang ensured this would not happen. In this regard, the current court is continuing a trend last seen when another conservative majority essentially decided the results of the 2000 presidential election, an election in which Florida’s results were affected by racially disproportionate challenges to voting rights on the basis of inaccurate accusations of criminal convictions.
But just as history of the post-Reconstruction and segregation era supreme court shows the motivation and pathway of this current supreme court, history also shows the pathway to victory, and we believe the following three recommendations are critical, even if just a beginning.
First, President Biden must appoint an attorney to the supreme court who has been a champion for civil and voting rights. When nominating an appointment to the supreme court, Lyndon B Johnson boldly chose a champion of civil rights to carry that legacy forward to the court without fear of reprisal. In doing so he was not being expedient but doing what the moment required. The moment requires President Biden to be unapologetically bold in the same manner and nominate a justice like Sherrilyn Ifill, Barbara Arnwine, Kristen Clarke or Judith Browne Dianis who all have great legal scholarship and have been defenders of democracy.
Second, Democrats must expand the court. Article 3 of the US constitution does not specify how many justices are required on the supreme court. The Democrats in Congress should use their power given to them by Black voters and increase the number of justices from nine to 11.
Third, we must have a serious discussion around and advocate for structural solutions which extend beyond which shape a gerrymandered map takes or which entities are entrusted to create those maps.
We must immediately begin to rethink what majority rule means for historically attacked racial and ethnic groups, and how do we create mechanisms that address these limitations in ways that make majority rule and this entire democracy more fair and effective. Concepts such as those advocated by the civil rights giant Lani Guinier, such as proportional representation, should receive full debate. Roberts has always been hostile to such mechanisms, and in doing so is serving as an impediment not only to Black voting rights but to a more inclusive democracy that would benefit all voters.
To make these recommendations a reality, Black people, other marginalized groups and allies must continue to organize at the local level, state level and national level to make clear our demands. History shows that through organizing, major court victories such as Brown v Board of Education, which ended segregation in schools, were won. In doing so, Black people in America can build political power that protects voting rights beyond an act that requires reauthorization every 20 years or so, and we can take our destinies out of the hands of people in power who still believe that a Black man – and woman – has no rights that a white man has to respect.
April England-Albright is an attorney and the Black Voters Matter Fund (BVMF) legal director. Cliff Albright and LaTosha Brown are BVMF cofounders
