LISTEN HERE (Support this project at patreon.com/AfricanElements)
“Filing deadlines need to be met, but candidates cannot be sure what district they need to file for. Indeed, at this point, some potential candidates do not even know which district they live in. Nor do incumbents know if they now might be running against other incumbents in the upcoming primaries,” Kavanaugh wrote, joined by Alito. “When an election is close at hand, the rules of the road must be clear and settled.”
Roberts said the three-judge panel that found Alabama’s map in violation of the Voting Rights Act seemed to have correctly applied existing precedent, and he would have let the panel’s ruling stand through the elections this year.
“In my view, the District Court properly applied existing law in an extensive opinion with no apparent errors for our correction,” he wrote in a solo dissent.
Only one of Alabama’s seven districts is currently held by a Democrat, Rep. Terri Sewell. The district, which is 63 percent Black, snakes along the state’s western border, linking Black voters in Birmingham, Tuscaloosa and Montgomery into one seat. But national Democrats sued in federal court, asking that the seat be split so that Alabama would have two districts likely to elect a Black member of Congress.
The case relied on a “voter dilution” claim — that Black Alabamians saw their political power weakened in the state by not having the ability to elect another member of Congress. Black people comprise 27 percent of Alabama’s population but have control of just 14 percent — one of seven — of the state’s congressional districts.
A panel of three federal judges, including two who had been appointed by former President Donald Trump, ruled in January for the plaintiffs and ordered the legislature to add a second Black opportunity district by Feb. 7. Democrats were heartened by the lower court’s ruling and hoped the decision and formula could be used to bolster lawsuits asking for additional Black seats in South Carolina, Louisiana and Georgia.
The ruling is perhaps another ominous sign for vigorous enforcement of the Voting Rights Act of 1965.
The Roberts court has significantly chipped away at the landmark civil rights law — most notably in the 2013 Shelby County decision, in which the Supreme Court effectively neutered Section 5 of the VRA.
That section of the law required that jurisdictions with a history of racial discrimination get changes to election laws — including political boundaries — preapproved by either the Department of Justice or a D.C.-based federal court. The court ruled nearly a decade ago that the formula used to determine discriminatory jurisdictions was outdated, and Congress has not replaced it.
The high court’s order Monday added the Alabama dispute to the justices’ docket to be fully briefed and argued this fall. However, Kavanaugh and Alito insisted that their votes did not signal any conclusion about whether Alabama’s map violated the Voting Rights Act.
“The Court’s stay order is not a decision on the merits,” Kavanaugh wrote.
In Roberts’ dissenting opinion on Monday, he noted that a lower court faithfully applied past precedent in determining whether Alabama’s proposed congressional lines violated Section 2 of the VRA, which prohibits voting practices or procedures that discriminate based on race.
“While the District Court cannot be faulted for its application of Gingles,” Roberts wrote, referring to a key 1980s Supreme Court ruling that laid out how to adjudicate vote dilution claims for minority groups, “it is fair to say that Gingles and it progeny have engendered considerable disagreement and uncertainty regarding the nature and contours of a vote dilution claim.”
Alabama’s briefing in the case urged the court to rule at least part of Section 2 unconstitutional, pointing to a larger legal strategy to weaken the law that could now get a more fuller airing during oral arguments: “At best, there is an ambiguity in the statute. At worst, the statute has been distorted beyond any possible meaning. Either way, the decision by the court below cannot constitutionally hold.”
Writing for the court’s three Democratic appointees, Justice Elena Kagan said the court was erring by stepping in to suspend the effect of the lower-court decision.
“This Court goes badly wrong in granting a stay,” she wrote, adding that it was evident the votes of African American Alabama residents was being watered down. “The District Court here did everything right under the law existing today. Staying its decision forces Black Alabamians to suffer what under that law is clear vote dilution.”
Last year, the Roberts court previously took a big bite out of Section 2, which allows the Justice Department and private litigants to file suits challenging voting practices as discriminatory. The decision came in a case from Arizona, Brnovich v. Democratic National Committee.
There, the court’s six conservative justices — Roberts plus the five justices who overturned the stay this year — signed on to an opinion authored by Alito that submitted five so-called guideposts to assess voting rights claims, which voting rights attorneys and activists said at the time would significantly curtail the ability to successfully bring challenges in the future.
While Roberts has faithfully joined with the court’s conservatives on election-related cases, he has occasionally sided with liberals on emergency rulings that would have an impact close to elections.
The case could also open up a battle over the Purcell principle — a legal theory that courts should look to not change election laws when an election is close. Kavanaugh cited it repeatedly throughout his concurring opinion, arguing that the principle required the court to stay the lower court’s rulings ordering new maps.
That is an argument that Kagan rejected in her dissenting opinion. She noted that the challenge to the map came almost immediately after it was passed, and that lower courts expedited their process. Congressional maps across the country were significantly delayed due to a historic delay in census date.
“Alabama is not entitled to keep violating Black Alabamians’ voting rights just because the court’s order came down in the first month of an election year,” she wrote.
This content was originally published here.