The Supreme Court tells Alabama to shut up and obey its voting rights decision

September 26, 2023:

The Supreme Court handed down two very brief orders on Tuesday, informing the state of Alabama that no, it is not allowed to defy one of the Court’s decisions on gerrymandering.

In June, in one of the most surprising decisions the Court has handed down in years, the justices voted 5-4 to affirm a lower court decision striking down Alabama’s congressional maps. The courts ordered the state to draw new maps that include at least two districts where Black voters can elect their candidates of choice.

African Americans make up about 27 percent of the state’s population, and Alabama has seven congressional districts. So, if the state has two Black districts, that will give Black voters representation that is roughly proportional to their population.

Both the lower court decision and the Supreme Court’s decision affirming it, in Allen v. Milligan, were uncontroversial under longstanding precedents interpreting the federal Voting Rights Act. But the Court’s Republican-appointed majority has historically been very hostile toward voting rights plaintiffs generally, and toward the Voting Rights Act in particular.

Alabama’s lawyers litigated this case with that history seemingly front and center in their minds — acting as if they had the Supreme Court in their back pocket. The first time the Milligan case was before the justices, the state’s lawyers proposed several ways to read the Voting Rights Act that would effectively eliminate its safeguards against racial gerrymandering.

But five justices rejected this effort to rewrite the law in their June opinion, with Chief Justice John Roberts writing that Alabama’s proposed rules run “headlong into our precedent.”

Nevertheless, Alabama refused to comply with the Court’s order, drawing a new map that contained only one district where Black voters could elect a candidate of their choice. The state then asked the Supreme Court to allow these new maps to go into effect because, while the state did not comply with the Court’s order, it did make some changes to the maps that touched upon some minor issues in the case that the Court mentioned in its June decision.

On Tuesday, the Court told Alabama that it wasn’t going to accept this defiance. Because there are technically two separate lawsuits challenging Alabama’s maps, the justices handed down two identical orders informing Alabama that it must comply with the Court’s June decision. Both orders are only one sentence long — “The application for stay presented to Justice Thomas and by him referred to the Court is denied” — and no justices publicly dissented from this order.

It is still unclear whether this represents a meaningful shift in the Court’s approach to voting rights. In a separate concurring opinion attached to the Court’s June decision, Justice Brett Kavanaugh suggested that he thinks the Voting Rights Act’s protections against racial gerrymandering should have a sunset date. So it is still possible that Kavanaugh will flip his vote and join the four justices who dissented in June in some future case.

The Court also plans to hear another racial gerrymandering case, Alexander v. South Carolina State Conference of the NAACP, in October. The Court’s decision in that case is likely to offer another window into whether the justices are shifting toward a more pro-democracy posture, or whether the June Milligan decision was a one-off.

At the very least, however, Tuesday’s orders suggest that the justices understand that they cannot allow a state to openly defy the Court’s decisions once those decisions are handed down.

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