The Supreme Court, in a 5-4 decision, allowed a congressional map drawn by Alabama Republicans to remain in place on February 7, freezing a lower court ruling that said the map likely violates the Voting Rights Act by diluting the political power of African American voters. The lower court had ordered a new map to be drawn, which could have led to Democrats gaining another seat in the House in the fall. Chief Justice John Roberts joined the three liberal justices in dissent. The justices also said they would hear arguments over the map, adding another potentially explosive issue, concerning the scope of a key provision of the Voting Rights Act, to the court’s docket.
The court’s order, the first dealing with the 2022 elections, means that the map will be used for the state’s upcoming primary, and likely be in place for the entire election cycle, while the legal challenge plays out.
The order pauses an opinion by a panel of three judges that held that the Alabama map likely violates Section 2 of the Voting Rights Act because it only includes one district where Black voters have the opportunity to elect a candidate of their choice. Justice Brett Kavanaugh, writing for himself and fellow conservative Justice Samuel Alito, said the court acted in order to maintain the status quo while the justices consider the issue. Kavanaugh said the court’s order “does not make or signal any change” to voting rights law.
Chief Justice Roberts, who again found himself siding with the court’s three liberals, said that while he agreed the court should take up the issue for next term to “resolve the wide-ranging uncertainties” in the case, he would have allowed the district court opinion to stand while the appeals process played out. The Supreme Court will hear the full case next fall.
“The District Court properly applied existing law in an extensive opinion with no apparent errors for our correction,” Roberts wrote.
Justice Elena Kagan, writing for her liberal colleagues Stephen Breyer and Sonia Sotomayor, wrote a much more strongly worded dissent. Kagan said the majority had gone “badly wrong” in granting Alabama’s request to freeze the lower court opinion and the court’s decision “forces Black Alabamians to suffer what under the law is clear vote dilution.” She said the decision will undermine a key section of the Voting Rights Act. She also said the court should not issue such an impactful order on its emergency docket (which critics refer to as its “shadow docket”) without full briefing and oral argument. “Today’s decision is one more in a disconcertingly long line of cases in which this Court uses its shadow docket to signal or make changes in the law, without anything approaching full briefing and argument,” Kagan said. She said the court’s action “does a disservice” to Black Alabamians who “have had their electoral power diminished — in violation of a law this court once knew to buttress all of American democracy.”
Alabama’s congressional redistricting plan was challenged under Section 2 of the Voting Rights Act, a VRA provision that has been a crucial tool for voting rights advocates after the Supreme Court gutted another section of the law that required certain states to get federal approval for its maps.
The lower court panel, which included two judges appointed by former President Donald Trump, said that Alabama was required to draw a second district where Blacks made up a majority of voters or close to it. Their decision pointed to Supreme Court precedent for how VRA redistricting cases should be handled. Before the Supreme Court’s ruling, US Rep. Mo Brooks complained to Alabama.com that “skin pigmentation” should not factor into the congressional redistricting process. “These liberal activist judges have tried to segregate us based on race, I find that abominable, in order to elect people in certain parts of the state based on race, which I also think is abominable. We’ve got to put the skin pigmentation issue behind us,” the Alabama Republican told the outlet Saturday, remarking later on “the concept that Blacks can only be elected in Black districts, and Whites should have districts of their own in which they get elected. I believe that is racist and I oppose it.”
Alabama, in seeking the Supreme Court’s intervention, had argued that race had been improperly used in the proceedings to determine whether Alabama was obligated under the law to draw a second minority-majority district. Alabama, in its arguments to the court, is asking the Supreme Court to “cut back significantly on the scope of Section (Two of) the Voting Rights Act in redistricting cases,” Rick Hasen, an election law expert, wrote in an analysis of the case last week. “A cutback could have major negative implications for African-American and other racial minority representation in Congress, in state legislatures, and in local bodies across the country, making it harder to require jurisdictions to draw districts where minority voters can elect representatives of their choice,” Hasen, a law professor at University of California-Irvine, wrote on the election law blog.