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After the 2020 census, the data out of Alabama was unambiguous: The state had become more racially and ethnically diverse over the last decade, as the percentage of people in Alabama who identify as white shrunk.
But when it came time for the state’s Republican-led government to redraw congressional district lines, a predictable thing happened: GOP officials largely ignored the demographic changes. In fact, they created a map with one majority-Black congressional district, despite the fact that more than a quarter of the state’s population is Black.
Republicans knew a lawsuit would soon follow, but they passed their map anyway. Initially, the litigation against the new district lines succeeded: Two weeks ago, a three-judge panel ruled that the map violated what remains of the Voting Rights Act.
This was hardly a progressive panel of jurists: Two of three judges who heard the case were Donald Trump appointees. They nevertheless agreed that Alabama Republicans had gone too far in creating a racially discriminatory map.
In theory, state officials should’ve scrambled to create a new plan. In practice, they did effectively nothing — except wait for Republican-appointed justices on the Supreme Court to come to their rescue.
Late yesterday, as NBC News reported, that’s precisely what happened.
In a 5-4 vote, the Supreme Court cleared the way Monday for Alabama to use its new congressional district map even though a lower court said it violated the Voting Rights Act by denying Black voters a new district. The court granted a request from Alabama Republicans to put a hold on the lower court ruling.
In terms of the 5-4 breakdown in Merrill v. Milligan, Chief Justice John Roberts — whose record on voting rights issues is dreadful — sided with the court’s center-left minority, made up of Justices Elana Kagan, Sonia Sotomayor, and Stephen Breyer. The dominant conservative majority — Justices Samuel Alito, Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett — predictably sided with Alabama.
As a procedural matter, this was not a decision on the merits, per se. The Republican-appointed justices put a lower court ruling on hold until the Supreme Court could hear the state’s challenge. But as a practical matter, that’ll take time — and in the interim, thanks to yesterday’s outcome, Alabama will hold elections this year under the district map that was deemed racially discriminatory by the lower court.
Kagan’s dissent, which was endorsed by Sotomayor and Breyer, was unsubtle.
“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," she wrote. "Here, the District Court applied established legal principles to an extensive evidentiary record. Its reasoning was careful — indeed, exhaustive — and justified in every respect. To reverse that decision requires upsetting the way Section 2 plaintiffs have for decades — and in line with our caselaw — proved vote-dilution claims. That is a serious matter, which cannot properly occur without thorough consideration.
“Yet today the Court skips that step, staying the District Court’s order based on the untested and unexplained view that the law needs to change. That decision does a disservice to our own appellate processes, which serve both to constrain and to legitimate the Court’s authority. It does a disservice to the District Court, which meticulously applied this Court’s longstanding voting-rights precedent. And most of all, it does a disservice to Black Alabamians who under that precedent have had their electoral power diminished — in violation of a law this Court once knew to buttress all of American democracy.”
NBC News’ report added, “The case — the first to reach the Supreme Court involving the redrawing of political boundaries with 2020 census results — could affect redistricting in other states that gained minority populations.” Watch this space.