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Saturday, December 9, 2023
Courthouse News Service
Saturday, December 9, 2023 | Back issues
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Voting rights experts on red alert following Supreme Court ruling on Alabama redistricting

Killing two birds with one stone, the Supreme Court’s conservative majority signaled an interest in further weakening the Voting Rights Act while also adding another case in critics’ arsenals to attack the justices’ use of the shadow docket.

WASHINGTON (CN) — Experts worry that the Voting Rights Act may be on the high court’s chopping block yet again after the conservative majority of the Supreme Court prevented litigation over a contested congressional map from moving forward during an election year.

Without an explanation, the justices blocked a district court ruling on Monday evening that would have forced Alabama to redraw its congressional map that the lower court said violated the Voting Rights Act. The lower court asked the state to give more influence to Black voters by creating another majority Black district. Alabama asked the Supreme Court for a stay on the district court’s ruling last month. The high court also agreed to add the case to its docket and it will most likely be heard next term. 

Some of the justices in the majority said the litigation was too close to the election to be considered this year. 

In his opinion on the order, Justice Brett Kavanaugh — who was joined by Justice Samuel Alito — relied on an expanded version of the Purcell principle, which prohibits district courts from altering election rules close to an election, to explain why the contested map should be used in the 2022 election. 

“In short, the Purcell principle requires that we stay the District Court’s injunction with respect to the 2022 elections,” the Trump appointee wrote. “The Court has recognized that ‘practical considerations sometimes require courts to allow elections to proceed despite pending legal challenges.’ So it is here. If the District Court’s judgment is eventually affirmed after appellate review, the injunction can take effect for congressional elections that occur after 2022.” 

Basically, Kavanaugh justifies his vote to overturn the lower court’s order by saying the case is just too close to the election to consider. However, the case was brought directly after Alabama released its map and the district court rushed its proceedings in an attempt to avoid this problem. 

“Although they did not criticize us for bringing it too late — they basically recognize we brought it as soon as they can — it's still too close to the election,” Davin Rosborough, senior staff attorney with the ACLU Voting Rights Project and co-counsel on the case, said in a phone call. “So in the case of Alabama, they have set up a system where despite the fact that three judges, found that it was not a close question, that we very clearly established that Alabama had violated the Voting Rights Act, there will be no remedy this year and basically these elections are going to proceed under districts that are discriminatory.” 

Experts say this presents a real problem because it halts the enforcement of constitutional rights. 

“Constitutional rights can not simply be put on hold because it's an election year,” David Bateman, professor of government at Cornell, said in a phone call. 

If the justices are saying that even if challengers to new congressional maps bring their case as soon as possible they still do not have the option to get any relief before an election is conducted, then it signals that legislatures get a free for all the first year their map goes into effect. 

“The court is kind of using its shadow docket to create this new rule where a discriminatory map maybe gets a free pass for the first year of an election cycle,” David H. Gans, director of the human rights, civil rights, and citizenship program at the Constitutional Accountability Center, said in a phone call. “I think that's the upshot of the ruling.” 

While the order marks only a setback and not the conclusion of voting rights advocates’ fight to give Black Alabamians more influence in elections, it ensures that the 2022 election will be conducted with the contested map. 


Kavanaugh — who was in the majority — offered a concurring opinion, however, the majority itself did not explain the decision. Because the case was on the court’s emergency docket, the majority was not obliged to write an opinion, but by not doing so they created further confusion as to how they came to their ruling and what precedents it might set. 

“One of the problems that the court’s voting rights cases kind of reveals is they're using the shadow docket to create new rules, and we don't have an opinion that sets out those rules,” Gans said. “They just kind of say, that’s the rule.”  

It is not entirely surprising that the liberals and conservatives spilt on this issue, however, it is notable that Chief Justice John Roberts joined the liberals. Roberts has occasionally joined the liberals on a few occasions but on voting rights, his jurisprudence is seen as very conservative. One of Roberts’ most widely recognized opinions is Shelby County v. Holder ,which found Section 4 of the Voting Rights Act unconstitutional. 

“​​I think it is incredibly significant that Roberts, for whom restricting the scope of the Voting Rights Act is one of his projects on the court, voted to deny the stay,” Gans said. 

Roberts — who wrote his own dissenting opinion — said he wouldn’t offer the stay because the lower court properly applied the court’s precedents as they stand now. 

“The governing standard for vote dilution claims under section 2 of the Voting Rights Act is set forth in Thornburg v. Gingles … which requires ‘the minority group ... to demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single-member district,’” the George W. Bush appointee wrote. “The District Court reviewed the submissions of the plaintiffs’ experts and explained at length the factbound bases for its conclusion that the plaintiffs had made that showing.” 

This ruling from Roberts is not a departure from his previously held views but instead allows the public to see where the other conservative justices might fall on voting rights issues in relation to his beliefs. 

“​​I think it speaks to how extreme and unfounded this decision was … This is a strong case and even [Roberts] who has not issued many decisions favorable to people on the side of voting rights recognized that this was basically changing the rules as the game was being played,” Rosborough said. “Of course, unfortunately, it is not a game at all. It affects the ability of many Black Alabamians to elect their chosen candidates.”  

Alabama is not the only state that is facing a contested congressional map. It is not clear how the court’s ruling this week will affect other cases, but experts say it could present an uphill battle. If this case was too close to the election for litigation to continue, it’s possible that other cases would be as well. 

Besides delaying litigation on Alabama’s congressional map until after the 2022 election, the ruling is also significant because the court agreed to hear another case concerning the Voting Rights Act. 

“It is a big deal that the Supreme Court is taking this case because this standard has in place since 1986 when the Thornburg v. Gingles case was taken up after Congress amended the Voting Rights Act in 1982 and it adopted the current standard,” Rosborough said. “Since then the Supreme Court has heard cases about it, but it's really just provided more guidance around the standard, it hasn't really changed it. So the potential for them to drastically change that standard would have a major impact.” 

The justices’ decision to stay the lower court’s ruling does not necessarily indicate they will rule one way or the other when they hear the full case, but it could suggest a further rightward shift on voting rights decisions. 

“The fact that they chose to overturn the lower court right now suggests that it's really moving in a much more aggressive conservative direction than it had been for a long time,” Bateman said. 

The result from such decision on voting rights could be an increase in one party dominance. 

“It doesn't mean that there's going to be an imposition of mass disenfranchisement, but it does mean that the types of practices that we already are extremely susceptible to in the United States … of manipulating institutional rules to ensure a single political party’s dominance are likely to become even more common because there's not going to be that judicial check,” Bateman said. 

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Categories / Civil Rights, Government, Law, Politics

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