Hello and Happy Thursday,
A few days ago, the US supreme court made a decision in a significant voting rights case that I find unusual and alarming.
In an emergency 5-4 ruling on Monday, the court said Alabama did not have to redraw its seven congressional districts ahead of the 2022 midterm elections. This halted a decision from just weeks previously, when a three-judge panel issued an extensive ruling telling Alabama that it did in fact need to redraw the districts because they discriminated against Black people. African Americans comprise roughly a quarter of Alabama’s voting age population, but held a majority in just one of the state’s seven districts.
The panel told Alabama its new plan had to have at least two districts where Black Alabamians made up a majority or near majority.
The speed with which that lower court acted caught my attention, because the decision was based on Section 2 of the Voting Rights Act (which prohibits voting discrimination based on race) – and Section 2 redistricting cases are notoriously complex and can take years to wind through the court. But the judges said the question was not a close one, and other redistricting experts agreed. “Pretty much a textbook Section 2 case,” Nicholas Stephanopoulos, a law professor at Harvard tweeted. “If this doesn’t violate Section 2, nothing does.”
In short, this was a textbook example of the use of section 2 of the Voting Rights Act if there ever was one. This isn’t even close. The fact that SCOTUS took the case is ominous, plain and simple.
— Michael Li 李之樸 (@mcpli) February 8, 2022
We only have a glimpse into why the US supreme court reversed the lower court ruling. The court issued its decision on its “shadow docket” – an emergency procedure in which the justices don’t have to explain their reasoning. In this case, justices Clarence Thomas, Neil Gorsuch and Amy Coney Barrett offered no explanation of their thinking.
The insight we do have comes from justices Brett Kavanaugh and Samuel Alito. Writing for the pair, Kavanaugh said the case actually was “not clearcut in favor of the plaintiffs”. Requiring Alabama to redraw its districts now, he said, would result in confusion for voters and hardship for the state as it prepared for elections this year.
It’s hard to take that argument seriously. Alabama’s primary election is not until 24 May, with mail-in ballot deadlines at the end of March. The state legislature completed the redistricting process in less than a week. Surely the state could put a new map in place with plenty of time ahead of the primary.
Kavanaugh’s decision essentially tells states that even if their map is eventually found to be illegal, they can get a free pass to use it for one election. The plaintiffs in the Alabama case moved just about as quickly as they could in the case. They filed their case immediately after the maps went into effect and the lower court expedited the trial to issue a ruling four months ahead of the primary. I struggle to imagine a scenario in which they could have moved faster.
Chief Justice John Roberts did not join Kavanaugh and Alito, but issued his own cryptic statement. He said that he would have required Alabama to redraw its maps, but said the law needed clarification. Many observers took that as a worrisome sign. In 2013 when the supreme court gutted a core piece of the Voting Rights Act, the section was one of the ways voting rights plaintiffs could challenge discriminatory laws. Now, Roberts is signaling he is open to narrowing the law.
After the ruling, I wanted to better understand what the lack of representation would mean for Black voters in Alabama. I posed that question to Steven Reed, the mayor of Montgomery, Alabama.
He pointed to the fact that all six Republicans in Alabama’s congressional delegation voted against a sweeping voting rights bill in Congress. The makeup of the congressional delegation also made it more difficult to advocate for expanding healthcare.
“When you look at other disparities in the healthcare realm, that is a need that our congressional delegation has not supported,” said Reed, a Democrat and Montgomery’s first Black mayor. “Had our congressional delegation been more diverse and had another advocate that represents the Black population, it would have had a different effect.”
Sheila Tyson, a Democratic county commissioner in Jefferson county, pointed to Republican opposition to raising the minimum wage and paid leave. “We don’t have people in these seats that represent us, that’s going to represent our beliefs.”
