The U.S. Supreme Court hacked one more big chunk out of the Voting Rights Act (VRA) Monday, allowing Alabama to implement a congressional redistricting plan a lower court had rejected. They did it again using the shadow docket, without having heard arguments, constituting a stunning blow to voting rights and one of the last remaining protections in the law against racial discrimination in voting.
The lower court required the state’s Republican legislature to redraw its map because it diluted Black votes in violation of Section 2 of the VRA. The map in question allows for just one of seven of the state’s districts to have a Black majority, a dilution of the Black vote as prohibited by what was left of the VRA. Section 2 of the law prohibits any voting procedure that “results in a denial or abridgment of the right of any citizen of the United States to vote on account of race.” That happens, the provision goes on, when, “based on the totality of circumstances,” racial minorities “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.”
The Supreme Court put the lower court’s ruling on hold, meaning Alabama will conduct its primary and likely general election this year using that racist gerrymander. The vote was 5-4, with Chief Justice John Roberts joining the dissent in this emergency order—another shadow docket decision concluded without a hearing. Read that sentence again. The majority decision was too extreme for John Roberts, who led the court in gutting the VRA beginning in 2013.
Justice Elena Kagan was furious in dissent. "Today’s decision 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, without anything approaching full briefing and argument."
“Substantial questions merit substantial thought,” she wrote. “Here, the District Court carefully and correctly applied the now-existing law and concluded that Alabama has unlawfully diluted the voting power of Black Alabamians.”
The majority decision, she 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."
Justice Brett Kavanaugh dismissed that, disingenuously saying in his concurrence, “The principal dissent’s catchy but worn-out rhetoric about the ‘shadow docket” is similarly off-target. The stay will allow this Court to decide the merits in an orderly fashion—after full briefing, oral argument, and our usual extensive internal deliberations—and ensure that we do not have to decide the merits on the emergency docket.” That’s Kavanaugh trying to pretend that they didn’t just tell the states that racial gerrymandering will be allowed by this court from now on.
He also argued that the court had to act immediately because the four months the legislature has before the primary in May just isn’t enough time for them to develop a new map. “Running elections statewide is extraordinarily complicated and difficult,” Kavanaugh observed. The district court’s order, he wrote, “would require heroic efforts by” election officials “in the next few weeks—and even heroic efforts likely would not be enough to avoid chaos and confusion.”
Kagan had an answer to that, too: “Alabama does not—because it cannot—contend that redrawing its map in advance of this year’s elections would be impossible. The State’s legislature enacted its current plan in less than a week.”
In a year of truly radical decision-making by the extremist on the court, this shadow docket ruling ranks high. It was so radical it took Roberts by surprise. The lower court, he wrote in his own dissent “properly applied existing law in an extensive opinion with no apparent errors for our correction.”
This is a radical majority bent on reshaping the nation and putting it firmly under the thumb of Republican minority rule for the foreseeable future.
Passing the voting rights and elections reform bills already passed by the House in the Senate is one partial remedy, in that it would restore the VRA and add new protections including ending racial gerrymandering. But that’s clearly not enough, because the illegitimate Trumpian majority on the Supreme Court will be there to strike down whatever protections Congress passes.
The only solution is to expand and reform the Supreme Court. President Joe Biden and Majority Leader Chuck Schumer and Speaker Nancy Pelosi have to do everything in their power to make that happen. What's the point of having control of the House, the Senate, and the White House, along with the biggest bully pulpit in the world, if you won't use it to secure the future of democracy?
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Biden, Democrats have no choice: Fight the Supreme Court or consign American democracy to history