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Brett Kavanaugh’s sneaky, underhanded new voting rights opinion, explained

Opinion | The Supreme Court Has Crossed the Rubicon

The Supreme Court Has Crossed the Rubicon
Feb. 9, 2022
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Joshua Lott/Agence France-Presse — Getty Images

By Linda Greenhouse

Ms. Greenhouse, the winner of a 1998 Pulitzer Prize, reported on the Supreme Court for The Times from 1978 to 2008 and was a contributing Opinion writer from 2009 through 2021.

You know the Rubicon has been crossed when the Supreme Court issues a conservative voting rights order so at odds with settled precedent and without any sense of the moment that Chief Justice John Roberts feels constrained to dissent.

This is the same John Roberts who in 1982, as a young lawyer in the administration of President Ronald Reagan, fought a crucial amendment to the Voting Rights Act of 1965; whose majority opinion in 2013 gutted one-half of the Voting Rights Act and who joined an ahistoric opinion last summer that took aim at the other half; and who famously complained in dissent from a 2006 decision in favor of Latino voters in South Texas that “it is a sordid business, this divvying us up by race.”

Yes, that Chief Justice Roberts. What the 5-to-4 majority did was that far out of line.

The unsigned order that drew the chief justice’s dissent Monday night blocked the decision by a special three-judge Federal District Court ordering the Alabama Legislature to draw a second congressional district in which Black residents constitute a majority. Alabama’s population is 27 percent Black. The state has seven congressional districts. The lower court held that by packing some Black voters into one district and spreading others out over three other districts, the state diluted the Black vote in violation of the Voting Rights Act.

The Supreme Court will hear Alabama’s appeal of the district court order in its next term, so the stay it granted will mean that the 2022 elections will take place with district lines that the lower court unanimously, with two of the three judges appointed by President Donald Trump, found to be illegal.

Chief Justice Roberts objected that the ordinary standards under which the Supreme Court grants a stay of a lower court opinion had not been met. “The district court properly applied existing law in an extensive opinion with no apparent errors for our correction,” he wrote. Justice Elena Kagan, joined by Justices Stephen Breyer and Sonia Sotomayor, also dissented in a more extensive opinion that accused the majority of using the court’s emergency “shadow docket” not only to intervene improperly on behalf of the state but also to change voting rights law in the process.

This is no mere squabble over procedure. What happened Monday night was a raw power play by a runaway majority that seems to recognize no stopping point. It bears emphasizing that the majority’s agenda of cutting back on the scope of the Voting Rights Act is Chief Justice Roberts’s agenda too. He made that abundantly clear in the past and suggested it in a kind of code on Monday with his bland observation that the court’s Voting Rights Act precedents “have engendered considerable disagreement and uncertainty regarding the nature and contours of a vote dilution claim.” But in his view, that was an argument to be conducted in the next Supreme Court term while permitting the district court’s decision to take effect now.

While the majority as a whole said nothing, Justice Brett Kavanaugh took it upon himself to offer a kind of defense. Only Justice Samuel Alito joined him. Perhaps the others — Justices Clarence Thomas, Neil Gorsuch and Amy Coney Barrett — chose not to sign onto his rude reference to Justice Kagan’s “catchy but worn-out rhetoric about the ‘shadow docket.’ ” Or perhaps his “To reiterate: The court’s stay order is not a decision on the merits” rang a little hollow when, as Justice Kagan pointed out, “the district court here did everything right under the law existing today” and “staying its decision forces Black Alabamians to suffer what under that law is clear vote dilution.”

In other words, when it comes to the 2022 elections, for Black voters in Alabama the Supreme Court’s procedural intervention is the equivalent of a ruling on the merits.

Or maybe the others couldn’t indulge in the hypocrisy of Justice Kavanaugh’s description of the standards for granting a stay. The party asking for a stay, he wrote, “ordinarily must show (i) a reasonable probability that this court would eventually grant review and a fair prospect that the court would reverse, and (ii) that the applicant would likely suffer irreparable harm absent the stay.”

But wait a minute. Weren’t those conditions clearly met back in September when abortion providers in Texas came to the court seeking a stay of the Texas vigilante law, S.B. 8, which was about to go into effect? That law, outlawing abortion after six weeks of pregnancy and authorizing anyone anywhere in the country to sue a Texas abortion provider for damages, was flagrantly unconstitutional, and the law was about to destroy the state’s abortion infrastructure. But did Justice Kavanaugh or any of the others in Monday’s majority vote to grant the requested stay? They did not. Chief Justice Roberts did.

It’s impossible not to conclude that what we see at work is not some neutral principle guiding the Supreme Court’s intervention but simply whether a majority likes or doesn’t like what a lower court has done. In his opinion, Justice Kavanaugh sought to avoid that conclusion by arguing that when it comes to election cases, the Supreme Court will more readily grant a stay to counteract “late judicial tinkering with election laws.” But there was no late “tinkering” here. The legislature approved the disputed plan in November, after six days of consideration, and the governor signed it. The district court conducted a seven-day trial in early January and on Jan. 24 issued its 225-page opinion. The election is months away — plenty of time for the legislature to comply with the decision.

Disturbing as this development is, it is even more alarming in context. Last July, in a case from Arizona, the court took a very narrow view of the Voting Rights Act as a weapon against vote denial measures, policies that have a discriminatory effect on nonwhite voters’ access to the polls. That case, Brnovich v. Democratic National Committee, was brought under the act’s Section 2, which prohibits voting procedures that give members of racial minorities “less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” Justice Alito’s opinion for a 6-to-3 majority set a high bar for showing that any disputed measure is more than just an ordinary burden that comes with turning out to vote.

It was an unusual case, in that Section 2 has much more typically been used as it was in Alabama, to challenge district lines as causing vote dilution. Obviously, at the heart of any Section 2 case is the question of how to evaluate the role of race. In its request for a stay, Alabama characterized the district court of having improperly “prioritized” race, as opposed to other districting factors, in ordering a second majority Black district. In response, the American Civil Liberties Union and the NAACP Legal Defense & Educational Fund, representing the Alabama plaintiffs, called this a mischaracterization of what the district court had actually done when it took account of the compactness and cohesion of the Black community and the history of white Alabama voters refusing to support Black candidates.

Stripped to its core, Alabama is essentially arguing that a law enacted to protect the interests of Black citizens bars courts from considering race in evaluating a redistricting plan. Justice Kagan’s dissenting opinion contained a warning that granting the stay amounted to a tacit acceptance of that startling proposition. She said the stay reflected “a hastily made and wholly unexplained prejudgment” that the court was “ready to change the law.”

The battle over what Section 2 means has been building for years, largely under the radar, and now it is front and center. The current Supreme Court term is all about abortion and guns. The next one will be all about race. Along with the Alabama case, Merrill v. Milligan, the Harvard and University of North Carolinaadmissions cases are also on the docket — to be heard by a Supreme Court that, presumably, for the first time in history, will have two Black justices, and all in the shadow of the midterm elections. The fire next time.

Linda Greenhouse, the winner of a 1998 Pulitzer Prize, reported on the Supreme Court for The Times from 1978 to 2008. She is the author of “Justice on the Brink: The Death of Ruth Bader Ginsburg, the Rise of Amy Coney Barrett, and Twelve Months That Transformed the Supreme Court.”
 

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'Frustrating, deterring and upsetting': Georgia voting law changes alarm Black voters

'We're very concerned': Black voters fear changes to Georgia voting laws
Many voting rights organizations are trying to address concerns ahead of the primaries and the midterm elections.
March 2, 2022, 1:10 PM EST
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ATLANTA — Varana King said she was excited to vote early with her husband, Gregory, in the presidential election last fall.

But when they arrived at the South Cobb Regional Library in Mableton, Georgia, at 9 a.m., she said, there were at least 1,500 people already in line. More than eight hours later, the couple — both of whom served in the U.S. Army — finally cast their ballots.

"Everything that could happen did happen while we were standing in line," Varana, 56, said. That included a downpour and swollen feet.

"In my mind, if we're still having these types of problems, it's intentional," she said.

Varana believes things will only be worse at some locations since Georgia Gov. Brian Kemp, a Republican, signed a restrictive voting law last year. The measure, Senate Bill 202, limits early voting sites and restricts both the number and the available hours of drop boxes. And she's not alone.

A recent Quinnipiac University poll found that among Black registered voters in Georgia, only 40 percent expect it to be very easy to vote in 2022, compared with 73 percent of white registered voters. Fewer than 20 percent of Black people polled believe all eligible people in Georgia will have a fair opportunity to vote in the 2022 general elections.

Varana, who is a retired government worker, said she will not be deterred but fears other people will be discouraged. Many voting rights organizations are trying to address concerns ahead of the primaries and the midterm elections.

Last year, at least 19 states passed 34 restrictive laws, according to an analysis by the Brennan Center for Justice at the New York University School of Law, which tracks voting bills and advocates for federal election legislation.

Passed last March, Georgia's law requires identification for mail-in voting, makes it illegal to take food or water to voters waiting in line, and allows state election officials to take over the administration of county elections. Kemp has said the law would make it "easy to vote and hard to cheat."

Richard Rose, president of the Atlanta NAACP, said that among the biggest concerns he has heard from Black voters is that the law will make it harder for people to cast absentee ballots and vote by mail, and that it has allowed a reduction in the number of polling places in Republican-controlled counties.

He said it was reminiscent of Jim Crow-era laws that suppressed the Black vote.

"If the Republicans can just discourage 300 voters out of each county — there are 159 counties in Georgia — that would have been enough to change the outcome in Georgia in 2020," Rose, 73, said in a recent interview as he left the state Legislature. "We are very concerned about how these things will impact voting rights."


That much is apparent to other Black residents of Georgia like Ted Winn, a recording artist, podcast host and social justice advocate.

"A lot of people are feeling concerned about the new laws that are in place and the ways in which those laws are impacting Black people and poor people," he said. "What's fascinating about it is it's not some clandestine approach to voter suppression. It's very open and in your face and unapologetic. And that is, I think, frustrating, deterring and upsetting to a lot of folks here on the ground."

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"What's fascinating about it is it's not some clandestine approach to voter suppression," social justice advocate Ted Winn said.Aboubacar Kante for NBC News
Carl and Chandra Abbott, who live in southwest Atlanta, said they are concerned about potential changes to voting hours that aren't conducive for working parents like themselves.

In some areas, the most minor change can shift someone's willingness to vote, Carl, 44, who works in medical sales, said.

"It's very clear that it's largely by design, for it to have to be a hurdle," his wife, Chandra, 45, said. "And that's very unfortunate, with everything that we, definitely as Black people, have worked for to kind of get this equal footing as it relates to our right to vote."

Even so, the couple said it will have no effect on whether they do vote.

Chandra, a scientist in the pharmaceutical industry, said she worries some Black people are also experiencing "fight fatigue."

"I think despite all the other struggles that are going on — the pandemic, racial injustice ... there's a fatigue, I think, too. A fight fatigue," she said. "So it's like, what issue are you going to focus on?"

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Chandra Abbott, a scientist in the pharmaceutical industry, and her husband, Carl, who works in medical sales.Aboubacar Kante for NBC News
Hillary Holley, organizing director of Fair Fight Action, a voting rights organization, said one goal of voter suppression laws is to confuse people to the extent that it discourages Black people and other voters of color from showing up to the polls. Her group was founded by Stacey Abrams, who narrowly lost her bid for Georgia governor in a contest marked by allegations of voter suppression affecting mostly Black voters.

Over the years, however, there has been a greater turnout among Black voters, despite attempts to suppress their votes, Holley said.

"What I hear from Black voters today is they are upset with the voter suppression laws," she said. "They're angry that people are trying to restrict their access to the ballot."

But after expressing that frustration and anger, she said, "their next question is always, 'OK, so what do we do?' That's what I hear across the state."

"A lot of young voters, and I'm a Black voter who was born and raised in Georgia, we were taught to think that this was over, that our nation had overcome this," Holley said. "And the fact that we're still having to deal with this, it is frustrating."

She said that during the 2018 gubernatorial election when Abrams challenged Kemp, the Democratic Party of Georgia received more than 50,000 phone calls through its voter protection hotline mostly from voters of color from across the state who encountered issues when they went to cast their ballots.

"So think about it: If those 50,000 people wouldn't have called, that would have a significant impact on the results," Holley said.

Fair Fight Action and several of its allies have begun trying to reach voters of color to get ahead of any of the confusion, she said. Among other things, the organization will rely on paid visibility campaigns through partnerships with restaurants across the state to distribute nonpartisan voter education materials.

"Oftentimes, voters will have questions about the new voting laws, voters will reach out to us with any concerns they may have," she said. "And then what we do is, we respond to them, but we also do a lot of proactive programs to teach voters."

Varana grew up in Greenwood, Mississippi, where historical markers identify sites of the civil rights movement, and where Black people protested for voting rights in the 1960s. She said she was taught the importance of voting by her parents and her grandparents as a child but she is not entirely confident that future elections will be run properly or that her vote will count. She plans to exercise her right to vote anyway.

"I've always been wary of that," she said.

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