June 9, 2023

Friday, June 9, 2023. Annette’s News Roundup.

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Something important happened yesterday, despite the fact that Trump has been indicted on seven Federal charges.

John Roberts and Brett Kavanaugh saved the Voting Rights Act.

Justice Roberts has always been the enemy of the Voting Rights Act, until yesterday. What happened?

The Supreme Court’s 5–4 decision in Allen v. Milligan on Thursday, which found that Alabama’s congressional map violates the Voting Rights Act’s ban on racial vote dilution, sends two clear messages.

First, a bare majority of the court—Chief Justice John Roberts, Justice Brett Kavanaugh, and the three liberals—believes that the VRA still plays a meaningful role in maintaining a multiracial democracy (or is willing to defer to Congress’ judgment on the matter).

Second, that same majority of the court does not look kindly upon red states’ race to shred decades of precedent in an effort to wipe out the voting power of Black Americans.

Roberts’ opinion for the court has a broader meaning that reaches far beyond this case: Red states cannot pressure the court into rewriting the VRA for no reason other than their shameless, brazen desire to elect more white Republicans.

Milligan revolves around Alabama’s current congressional map, which GOP legislators drew after the 2020 census. Black residents make up nearly one-third of the state’s population, but lawmakers gave them a majority in just one of the state’s seven congressional districts. They did so by drawing a single, snaking district that captured most Black communities, then dispersing the remainder of Black voters throughout majority-white districts. The obvious purpose was to ensure that Black Alabamians could only have a real opportunity to elect one representative of their choice.

This tactic is plainly illegal under Section 2 of the VRA, which prohibits voting laws (including redistricting plans) that have a racially discriminatory effect, meaning a disparate impact on Black voters.

In January 2022, a three-judge district court struck down the map, finding that it illegally diluted the votes of Black Alabamians. But the Supreme Court swiftly halted that decision on the shadow docket. Its order split 5–4 (with Kavanaugh in that majority), and though Roberts dissented, he objected only to the majority’s use of the shadow docket to overhaul precedent, and was open to narrowing Section 2 in the future.

After SCOTUS’ intervention, it seemed inevitable that the conservative supermajority would use Milligan to eviscerate what remains of the Voting Rights Act.

But it didn’t! In fact, it did the opposite, vigorously reaffirming the ongoing importance and validity of this portion of the VRA in the face of ceaseless GOP attacks. Roberts’ opinion for the court on Thursday traced the history of racist voter suppression after the Civil War, leading up to the initial passage of the VRA in 1965. He explained how, in 1980, the Supreme Court held that the law barred only discriminatory intent, not effect—a decision that “produced an avalanche of criticism, both in the media and within the civil rights community.” Roberts wrote that some lawmakers were wary that an “effects test” (which measured impact rather than intent) would require a “quota system” or “racial proportionality” in districting, raising equal protection concerns. And so Congress settled on a bipartisan, “hard-fought compromise,” which amended Section 2 to require that the electoral process be “equally open to participation” by all racial groups.

What’s shocking about Roberts’ history lesson is that, at the time, he was on the front lines of the fight against expanding the VRA to include an effects test. As a lawyer at Ronald Reagan’s Department of Justice, he wrote about 25 memos in opposition of the new test and drafted op-eds on the topic for administration officials. Indeed, it is quite likely that Roberts actually ghostwrote one op-ed that he quoted in Milligan to illustrate the Justice Department’s hostility. Once on the Supreme Court, of course, Roberts consistently voted to narrow the VRA in line with his earlier views.

So Milligan represents a total about-face: For the first time ever, the chief justice has embraced the law as a legitimate means of safeguarding Black Americans’ equal participation in the electoral process.

What happened? We will debate that question for decades, but one answer leaps off the page: Alabama pushed too far, too fast, too transparently. The state wanted the court to either gut the VRA under the guise of “interpretation” or simply strike it down as unconstitutional. Roberts turned down both requests, and Kavanaugh went along with him. Notably, his analysis of Alabama’s map itself is extremely brief, as if to illustrate that this case is not a close call. He explained that the court uses the “Gingles test” to identify a violation of Section 2. Under that test, a minority group must be large and compact enough to constitute a majority in one “reasonably configured” district; the group must be “politically cohesive,” meaning its members generally share the same political preferences; and it must be able to demonstrate that white voters can consistently block its “preferred candidate.” If all these conditions are met, the group must then show that elections are not “equally open” to racial minorities under a “totality of the circumstances.”

The district court found these conditions satisfied, and Roberts agreed, writing that the court “faithfully applied our precedents” to reach sound “legal conclusions.” That conclusion needs little explanation based on the facts relayed above;

it is painfully clear that Alabama’s overarching goal was to minimize Black voters’ ability to elect their preferred representative. So the balance of Roberts’ opinion amounts to a complete demolition of Alabama’s attempt to “remake our Section 2 jurisprudence anew.”

The state’s GOP attorney general, he wrote, urged the court to adopt a new test that it called the “race-neutral benchmark.” It involves using a computer to create a ton of maps that do not consider race, then calculating the “average number of majority-minority districts in the entire multi-million-map set.” If the actual map aligns with the average simulated map, it cannot violate the VRA.

This is absurd, and Roberts said as much. First, it simply has zero basis in the text of Section 2, and was created out of whole cloth by conservative lawyers who want to maximize white voting power in their state. Second, as Justice Ketanji Brown Jackson pointed out at oral arguments, Congress wanted states to consider race when drawing districts to ensure that they did not lock out racial minorities. “Racial considerations” are appropriate, the chief justice explained, so long as they do not “predominate” map-drawing. Third, Alabama’s test could, in practice, make it impossible for states to draw maps that comply with the VRA, because ostensibly “race-neutral” maps often have the effect of diluting Black Americans’ votes.

Finally, Alabama argued that the VRA’s “effects test” is unconstitutional because it exceeds Congress’ power under the 14th and 15th Amendments. This theory loomed over the whole case, raising the distinct possibility that SCOTUS would end its campaign of death by a thousand cuts and finally bring down the hammer on the law. But Roberts spurned it in a single paragraph, writing that the court had upheld the law’s constitutionality in the past, and had no interest in revisiting those precedents.

That conclusion is a stunning turnabout for the chief justice that suggests he really has made peace with the law as it exists today.

(Slate).

Supreme Court Rejects Voting Map That Diluted Black Voters’ Power.

Voting rights advocates had feared that the decision about redistricting in Alabama would undermine the Voting Rights Act, which instead appeared to emerge unscathed.

The Supreme Court, in a surprise decision, ruled on Thursday that Alabama had diluted the power of Black voters by drawing a congressional voting map with a single district in which they made up a majority.

Chief Justice John G. Roberts Jr. wrote the majority opinion in the 5-to-4 ruling, which required the State Legislature to draw a second district in which Black voters have the opportunity to elect representatives of their choice. He was joined by Justice Brett M. Kavanaugh and the court’s three liberal members, Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson.

Voting rights advocates had feared that the decision would further undermine the Voting Rights Act of 1965, a landmark legislative achievement of the civil rights movement whose reach the court’s conservative majority has eroded in recent years. Instead, the law appeared to emerge unscathed from its latest encounter with the court.

The chief justice wrote that there were legitimate concerns that the law “may impermissibly elevate race in the allocation of political power within the states.” He added: “Our opinion today does not diminish or disregard these concerns. It simply holds that a faithful application of our precedents and a fair reading of the record before us do not bear them out here.”

Justice Clarence Thomas filed a slashing dissent. The majority’s approach, he wrote, “does not remedy or deter unconstitutional discrimination in districting in any way, shape or form.”

“On the contrary,” he added, “it requires it, hijacking the districting process to pursue a goal that has no legitimate claim under our constitutional system: the proportional allocation of political power on the basis of race.”

In all, he wrote, the majority ruled “that race belongs in virtually every redistricting.”

Justice Thomas’s bitter tone suggested deep disappointment with Chief Justice Roberts and Justice Kavanaugh and profound regret over a missed opportunity. Justices Samuel A. Alito Jr., Neil M. Gorsuch and Amy Coney Barrett joined all or large parts of Justice Thomas’s dissent.

In a concurring opinion, Justice Kavanaugh wrote that “the authority to conduct race-based redistricting cannot extend indefinitely into the future.”

Justice Thomas responded that his colleague had nonetheless voted “to sustain a system of institutionalized racial discrimination in districting — under the aegis of a statute that applies nationwide and has no expiration date — and thus to prolong the lasting harm to our society caused by the use of racial classifications in the allocation of political power.”

Attorney General Merrick B. Garland welcomed the ruling. “Today’s decision rejects efforts to further erode fundamental voting rights protections, and preserves the principle that in the United States, all eligible voters must be able to exercise their constitutional right to vote free from discrimination based on their race,” he said in a statement.

The case was part of a pitched battle over redistricting playing out across the country. Civil rights leaders say the redistricting process often disadvantages growing minority communities. Republican state officials say the Constitution allows only a limited role for the consideration of race in drawing voting districts.

The case started after Alabama’s Legislature, which is controlled by Republicans, redrew the congressional map to take account of the 2020 census.

The state has seven congressional districts, and its voting-age population is about 27 percent Black. The new map maintained a single district in which Black voters made up a majority.

That district has long elected a Democrat, while the state’s other six districts are represented by Republicans.

After Black voters and advocacy groups challenged the map under the Voting Rights Act, enacted in 1965 to protect minority voters, a unanimous three-judge panel of the Federal District Court in Birmingham ruled thatthe Legislature should have fashioned a second district“in which Black voters either comprise a voting-age majority or something quite close to it.”

The unsigned decision was joined by Judge Stanley Marcus, who ordinarily sits on the U.S. Court of Appeals for the 11th Circuit, in Atlanta, and who was appointed by President Bill Clinton; and by Judges Anna M. Manasco and Terry F. Moorer, both appointed by President Donald J. Trump.

The panel found that voting in the state was racially polarized and that it would be possible to draw “a second reasonably configured district” to allow Black voters to elect their favored candidates.

The court relied on Section 2 of the Voting Rights Act, which bars any voting procedure that “results in a denial or abridgment of the right of any citizen of the United States to vote on account of race.” That happens, the provision goes on, when, “based on the totality of circumstances,” racial minorities “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.”

Chief Justice Roberts wrote that the lower court had gotten things right. “We see no reason to disturb the district court’s careful factual findings,” he wrote.

Justice Thomas wrote that under the lower court’s approach, “Section 2 is nothing more than a racial entitlement to roughly proportional control of elective offices — limited only by feasibility — wherever different racial groups consistently prefer different candidates.”

He added, “If that is what Section 2 means, the court should hold that it is unconstitutional.”

Even as Justice Thomas portrayed the majority opinion as transformative, Chief Justice Roberts stressed that it merely maintained the status quo. “The heart of these cases is not about the law as it exists,” he wrote. “It is about Alabama’s attempt to remake our Section 2 jurisprudence anew.”

Last year, the Supreme Court temporarily blocked the lower court’s ruling by a 5-to-4 vote, ensuring that the 2022 election would take place using the Legislature’s map, the one with a single district in which Black voters were in the majority.

Justice Kavanaugh voted with the majority at the time, saying the lower court had acted too close to the election. “I take no position at this time on the ultimate merits of the parties’ underlying legal dispute,” he wrote.

Chief Justice Roberts dissented at the time, though he said that the court’s precedents “have engendered considerable disagreement and uncertainty regarding the nature and contours of a vote dilution claim.” That statement suggested that he was prepared to revisit those precedents. Instead, on Thursday, he let them stand.

Earlier Supreme Court decisions have curtailed other parts of the Voting Rights Act.

In 2013, in Shelby County v. Holder, the court effectively gutted Section 5 of the Voting Rights Act, which had required federal approval of changes to state and local voting laws in parts of the country with a history of racial discrimination. But that ruling assured the public that Section 2 of the law would remain in place to protect voting rights by allowing litigation after the fact.

In 2021, in Brnovich v. Democratic National Committee, the court cut back on Section 2 of the law, limiting the ability of minority groups to challenge voting restrictions.

Richard L. Hasen, a law professor at the University of California, Los Angeles, said Thursday’s decision, Allen v. Milligan, No. 21-1086, must be understood against the backdrop of the Supreme Court’s recent decisions on abortion and guns and a coming one that is likely to limit affirmative action in higher education.

“It would have been an earthquake for the court to have read Section 2 as the dissenters would have, severely curtailing minority voters’ representation in Congress, state houses and city halls,” Professor Hasen said. “Roberts and Kavanaugh’s joining with the liberals in preserving the status quo helps not only minority voters, but the court’s fragile legitimacy in the face of these other rulings and ethics scandals.” (New York Times).

One more thing. Yes, Joe is always busy.