On Monday, the Supreme Court—and specifically Justice Samuel Alito—demonstrated again why Biden and congressional Democrats need to do that something. In what at first blush was a victory for voting rights, the court refused to block new congressional maps drawn the state supreme courts of Pennsylvania and North Carolina. That’s good. For now.
It rejected the radical “independent state legislature” theory increasingly pushed by Republican state legislators that would give state legislatures unlimited power over elections, over state courts, over governors, over everyone. That goes against more than a century’s worth of Supreme Court precedent, but we’ve saw hints from the extremists on the court that at least four of them—Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh—are willing to entertain the theory. All four supported some version of it in 2020 election cases.
In these cases, the maps drawn or chosen by the states courts will stand through the midterms this year. “It is too late for the federal courts to order that the district lines be changed for the 2022 primary and general elections,” Kavanaugh wrote in his opinion on the North Carolina case, which pointedly does not rule out changing them in future elections.
Alito was even more blatant. Last month, the Supreme Court blocked a federal court order that would have required the Alabama legislature to redraw its congressional map to ensure it does not dilute the power of Black voters. Alito joined this latest attack on the Voting Rights Act by concurring with Kavanaugh who wrote that it was just too close to the May 24 primary for “judicial tinkering with election laws.” The result: Black voters in Alabama have to wait at least until after the November election to challenge the maps.
But in the case of North Carolina in this instance, he wrote that it would not be a burden for North Carolina voters to have the maps changed on them before the May 17 primary—a week before the Alabama primary he says we’re too close to to change the process. He wrote “the public interest will be disserved if the 2022 congressional elections in North Carolina are held using districts that we eventually determine were unconstitutionally imposed.” He really could not have been more blatant in his aim in these two instances—disenfranchising Black voters and engineering Republican victories.
As if to underline his bad intent, he also wrote “If the language of the Elections Clause is taken seriously, there must be some limit on the authority of state courts to countermand actions taken by state legislatures when they are prescribing rules for the conduct of federal elections,” making sure that he gives himself leeway in the future to strike down any state court decisions with which he disagrees.
He was in the minority, this time. But he was joined by Thomas and Gorsuch. Amy Coney Barrett didn’t say anything this time around. This time around. It can all change after these midterm elections if the Republicans regain the Senate. And the Court isn’t under the imminent threat of being expanded. If the Republicans get the Senate, the extremists’ project of dismantling our democracy will continue apace.
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From the shadow docket, radical Supreme Court blows up Voting Rights Act, allows racist gerrymander