#BothSides
It’s a reminder that conservatives’ respect for the judiciary only extends as far as the courts let them entrench their own power.
newrepublic.com
How Alabama Defied the Supreme Court on Racial Gerrymandering
It’s a reminder that conservatives’ respect for the judiciary only extends as far as the courts let them entrench their own power.
Matt FordJuly 24, 2023
Republicans on Capitol Hill issued dire warnings about a Supreme Court ethics bill that passed the Senate Judiciary Committee this week. Iowa Senator Chuck Grassley, who previously chaired the committee, claimed Democrats’ real goal was “harassing and intimidating the Supreme Court.” South Carolina Senator Lindsey Graham described the legislation as “an assault on the court itself.”
Describing ethics reform proposals as harassment and assault is already dubious at best. But last week’s battle over Alabama’s congressional maps makes Republicans’ purported efforts to protect the high court’s legitimacy ring even more hollow. GOP state lawmakers in Montgomery effectively defied a month-old Supreme Court ruling on Friday by refusing to draw a second majority-Black congressional district—a rare instance of American elected officials openly refusing to abide by a federal court order.
The Alabama legislature instead adopted a new map before the court’s Friday deadline that retained Alabama’s existing majority-Black district and adjusted Alabama’s second congressional district so that eligible Black voters made up just 39.93 percent of the electorate, falling well short of a majority. Some Alabama Republicans claimed that they were trying to maintain compact districts and keep “communities of interest” together along the state’s Gulf coast.
But a special three-judge district court panel had previously held that those interests were less vital than giving Black Alabamians the ability to elect candidates of their choice. The court had given lawmakers until Friday to draw a new map that cured the racial gerrymandering issues.
Their failure to do so invites another legal challenge and opens the door to the possibility that the court itself will redraw Alabama’s congressional districts.
Alabama has long resisted efforts to address racial gerrymandering in the state, even after the civil rights era. While roughly one-quarter of the state’s residents are Black, six of Alabama’s seven congressional districts are currently majority-white, some by lopsided margins. The sole majority-Black district in Alabama was itself the product of Voting Rights Act litigation in the 1990s that forced lawmakers to draw a district to address racial gerrymandering claims. By diffusing Black voters throughout the state’s congressional districts, Alabama had previously maintained all-white congressional delegations.
After the 2020 census, Alabama lawmakers again drew a map with six majority-white congressional districts and one majority-Black district, despite the state’s sustained population growth. Voting rights groups challenged the new map under Section 2 of the Voting Rights Act of 1965, which bans racial discrimination in election laws and policies. Since the 1980s, that provision has been used to tackle instances where state lawmakers drew legislative maps to dilute minority groups’ electoral strength.
A special three-judge panel ultimately found in 2022 that the new map violated Second 2 by impermissibly diluting Black Alabama voters’ electoral power. It ordered the state to draw a second majority-Black district to remedy the violation. State officials appealed the case, Allen v. Milligan, to the Supreme Court to overturn the ruling and enact a higher threshold for racial gerrymandering claims. The state also asked, as a long-shot bid, for the court to ban racial gerrymandering litigation altogether under the Voting Rights Act.
Chief Justice John Roberts, joined by Justice Brett Kavanaugh and the court’s three liberals, declined to do so and upheld the three-judge panel’s decision. The ruling surprised many observers since the Supreme Court in recent years, and Roberts in particular, has consistently voted to narrow the Voting Rights Act’s scope when given the opportunity. Roberts himself wrote the court’s landmark ruling in Shelby County v. Holder in 2013, which gutted the law’s preclearance provisions for voting law changes in the South and other jurisdictions.
In Milligan, however, Roberts rejected Alabama’s efforts to rewrite the court’s precedents on racial gerrymandering. “We see no reason to disturb the district court’s careful factual findings, which are subject to clear error review and have gone unchallenged by Alabama in any event,” he wrote for the court. “Nor is there a basis to upset the district court’s legal conclusions. The court faithfully applied our precedents and correctly determined that, under existing law, [the new map] violated Section 2.”
While the high court’s ruling only addressed Alabama’s congressional map, its reaffirmation of precedent could still lead to redrawn districts in other states as well. A federal court already ruled against Louisiana’s congressional map on racial gerrymandering grounds last year, and voting rights groups have eyed similar litigation in states like Florida, Georgia, and North Carolina. If those cases result in more majority-Black congressional districts, it could tip the balance of power in the House of Representatives away from Republicans, who currently have a five-seat majority in the chamber.
That perceived peril may explain the state legislature’s defiance. Alabama Governor Kay Ivey called a special legislative session to redraw the maps after the court defeat. State lawmakers, however, have so far chosen to effectively ignore the courts’ rulings. The bill passed on Friday was a “compromise” map, but only in the sense that it represented a middle ground between the Alabama House, which approved a district with 42 percent eligible Black voters, and the Alabama Senate, whose version of the same district contained only 38 percent eligible Black voters.
The maneuvering underscores the extent to which conservatives’ support for the courts is conditioned on the courts’ willingness to help them entrench their own power. One of the Republicans’ most effective achievements since 2010 is gerrymandering themselves into legislative supermajorities in states like North Carolina and Wisconsin. Thanks to partisan redistricting efforts, the GOP has consistently drawn highly favorable districts for its members, reducing the number of competitive elections and incentivizing more radical partisan primaries.
Alabama Republicans’ gambit can’t ultimately succeed if the Milligan majority abides by its own ruling and upholds it again in the future. But even that isn’t guaranteed. In one of his usual concurring opinions last month, Kavanaugh wrote that he agreed with the majority’s decision to brush aside Alabama’s interpretation of precedent. But he also suggested that he might not be willing to allow courts to use Section 2 to draw majority-Black districts to address racial gerrymandering forever.
In Kavanaugh’s eyes, those remedial efforts at redistricting could themselves amount to “race-based redistricting” and, in turn, violate the Fourteenth Amendment’s Equal Protection Clause. “But Alabama did not raise that temporal argument in this court, and I therefore would not consider it at this time,” he pointedly concluded. It would not be surprising if Alabama Republicans read that line as an instruction manual for how to win the next round.
There is a potent irony in all of this: It was Roberts, more than anyone else, who asserted in past VRA-related opinions that some of the protections developed in the 1960s to bring democracy to the American South were now defunct. “Things in the South have changed,” he famously declared in a 2009 case that presaged the court’s ruling in Shelby County. It’s true that the South of today isn’t the South of the 1950s and 1960s. But Alabama’s defiance on Friday shows that things haven’t actually changed quite as much as Roberts claimed—and the court’s legitimacy has suffered for it.
it seems
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