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Conservative Supreme Court Bucks Trend by Siding Against Alabama GOP

Conservative justices Brett Kavanaugh (top third from left) and Chief Justice John Roberts (bottom third from left) sided with liberal judges to preserve what's left of the Voting Rights Act in Alabama last week.

In a puzzling 5-4 decision, two U.S. Supreme Court members who regularly rule against voting rights sided with the court’s liberal members to say white Alabama lawmakers had gerrymandered congressional maps to water down the Black vote.

In 2013, Chief Justice John Roberts voted with conservative members in Shelby County v. Holder to eviscerate Section 4 of the Voting Rights Act, the section demanding states with a history of voter discrimination first “pre-clear” any proposed alterations to their voting rules with the Justice Department. As predicted, Mississippi, Texas and other historically racist states immediately passed a slew of new laws to diminish voter participation among non-white and young constituencies because of Robert’s decision. Mississippi’s new voter registration restrictions, Florida’s new poll tax and Texas’ most recent effort to remove local control over elections in Democratic and Latino Harris County are examples of neo-confederate laws that blossomed after the court routed preclearance.

Pro-beer Trump appointee, Brett Kavanaugh, is another reliable SCOTUS judge who routinely votes against women’s rights, labor rights and voting rights, so both Robert’s and Kavanaugh’s decision siding with liberal justices against Alabama’s transparent effort to diminish the state’s Black political presence through district “packing” is a shock to court observers.

Because of the Roberts court, Section 2 of the Voting Rights Act is the last remaining provision with any real teeth. Surprisingly, however, Roberts and Kavanaugh used the Act’s final remaining provision as the basis for upholding an earlier three-judge panel decision dumping Alabama legislators’ argument for racist maps.

White Alabama legislators, like those in most U.S. states, get to pick and choose their own voters. Race is one of the most easily recognized determiners for how a population votes, and legislators exploit Census redistribution by packing Black and Democratic voters together in as few districts as possible while sprinkling remaining Black residents into vast regions of white voters who water down the Democrat presence. This practice makes it very difficult to flip a district one way or another, and it is the primary reason districts keep the same, tired incumbent for many years, despite low public opinion of congress.

Up until the Shelby decision, the 14th Amendment, and the Voting Rights Act of 1965 effectively barred the practice of packing and diluting minority voting power, and it forced legislators to be mindful of the practice while making their incumbent-friendly maps. Without preclearance, however, Alabama’s white majority were able to choose a map comprising seven congressional districts with only one majority-Black district, despite the fact that the state is more than one-quarter Black. White lawmakers also asked the court to deliver a radical rewrite of precedent, asking SCOTUS to stop harassing Alabama’s gerrymandering efforts with the race question altogether. Roberts denied that request.

“The […] change to existing law that Alabama would require is (for the court to prohibit) the illustrative maps that plaintiffs submit to satisfy […] precondition from being “based” on race. […] We see no reason to impose such a new rule,” Roberts wrote.

Giving Alabama what it wanted would have outlawed monitoring voting practices that discriminate based on race, so democracy was lucky there. But don’t rest easy with the feeling that this court is any kind of friend of democracy. Last year, this same court submitted an unsigned February 2022 order allowing Alabama’s racist maps (the very one’s it jettisoned today) to stand for the 2022 election. The order was extremely timely for Republicans. Submitted with no court explanation, the decision impacted other contested, gerrymandered maps in Georgia and Louisiana, and likely helped the mostly white Republican Party reclaim the U.S. House by a slim majority last November.

The court’s act of applying what’s left of the Voting Rights Act (that it happily gutted) to preserve one Black district in woefully gerrymandered Alabama could potentially bode well for other “packing and cracking” cases waiting before the court. But there is no guarantee that the court will follow even its own precedent and apply the same argument fairly in every case.

This same court in 2019 ruled in a Wisconsin case that federal courts don't have the power to decide cases related to partisan gerrymandering, which effectively ended a Wisconsin lawsuit against unfair legislative maps that Republicans drew in 2011. At the time, the court ruled in a 5-4 decision that "partisan gerrymandering claims present political questions beyond the reach of the federal courts.” But then that same court turned around last year and issued another unsigned decision throwing out a Wisconsin legislative map with an additional majority Black district. It’s argument: the map was a “racial gerrymander” that favored Wisconsin Black voters. Essentially, the Supreme Court reversed its own opinion that it should stay out of gerrymandering arguments so it could help Wisconsin Republicans get the map they wanted for the Wisconsin State Assembly.

So, sure, take the win this one time, if you’re a fan of democracy. But don’t get your hopes up for this court being either pro-democracy or consistent in its future decisions. Justice Sonia Sotomayor warned of a “stench” settling over the court the day its new members reversed their claims of Roe being “settled” or “precedent and overturned it in Dobbs v. Jackson Women's Health Organization. That stench has gone nowhere, and this court is still at its heart a reliable adjunct of the one party it serves.


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