On Monday afternoon, the Supreme Court crushed yet another key component of the Voting Rights Act, halting a lower court order that required Alabama to redraw its egregious racial gerrymander. The court’s intervention in Merrill v. Milligan was so radically unjustified that Chief Justice John Roberts—an architect of the judicial attack on voting rights—dissented, alongside the three liberals. The court’s order indicates that the five ultraconservative justices are preparing to dismantle the VRA’s guarantee against gerrymanders that dilute the voting strength of Black Americans. Indeed, by interceding so aggressively in Merrill, these far-right justices have effectively nullified this guarantee for the current redistricting cycle.
Over the last decade, the Supreme Court has bulldozed several key provisions of the VRA. But until now, it had not yet repealed the law’s protections against the dilution of votes cast by racial minorities. This shield, contained in Section 2 and clarified by 1986’s Thornburg v. Gingles, requires a three-judge district court to determine whether a redistricting plan carves up minority communities to prevent them from electing the candidate of their choice. Although the Gingles test can be difficult to apply, the relevant factors here are straightforward: Due to racially polarized voting in the state, Black Alabamians cannot elect their preferred representatives unless they constitute a majority of their district.
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Alabama Republicans understand this fact, and it is why their new congressional map ruthlessly dilutes Black votes. The plan packs a huge number of Black voters into a single, sprawling district that stretches from Birmingham to Montgomery, including as many nonwhite residents as possible. The few remaining voters of color are distributed through six majority-white districts, where they stand no chance of electing their favored candidate. As a result, while Black Americans make up 27 percent of the state’s population, they control just 14 percent of its congressional delegation.
This map, in other words, is a classic racial gerrymander designed to diminish the political power of racial minorities. Black residents challenged its legality, and after a thorough trial, a three-judge district court agreed that it violates Section 2 of the VRA in a meticulous 225-page opinion. (Two of the three judges were appointed by President Donald Trump, which illustrates just how lawless and brazen the redistricting plan was.) The court found that Alabama had willfully refused to create a second majority-Black district, instead slicing up minority communities to boost the voting power of white residents. And it ordered the state to redraw its map with another majority-Black district in compliance with the VRA. Predictably, Alabama Republicans appealed to the Supreme Court, asking it to eviscerate Section 2’s safeguards against racial gerrymandering.
Republicans’ claims were so weak that Roberts, who engineered the decadeslong crusade against the VRA, could not bring himself to humor them. But on a 6–3 court, the chief justice’s vote doesn’t matter. The five justices to Roberts’ right halted the district court order demanding new maps and took up the case on the merits. It’s unclear whether the court will hear Merrill v. Milligan this term or next, but either way, it won’t matter for the 2022 election. The primary is in May, so the court’s stay effectively locks in the current maps for the upcoming election. The move is a quintessential shadow docket decision, producing substantive (and disastrous) consequences without an opinion from the court. It sends a message to lower courts and state legislatures that Section 2’s bar on racial gerrymandering has been suspended definitely, declaring open season on racial minorities’ voting power.
Roberts’ short dissent commended the lower court for having “properly applied existing law in an extensive opinion with no apparent errors for our correction.” This praise is remarkable in light of the chief justice’s long-standing contempt for that “existing law.” Yet even he acknowledged that the lower court had applied it flawlessly and saw no basis to step in, despite his broader misgivings about the “uncertainties arising under Gingles.”
Justice Elena Kagan’s dissent, joined by Justices Sonia Sotomayor and Stephen Breyer, was significantly fiercer. “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.” Yet the five ultraconservative justices froze that decision “based on the untested and unexplained view that the law needs to change.” This intervention, Kagan continued,
does a disservice to our own appellate processes, which serve both to constrain and 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.
In a characteristically petulant concurrence, Justice Brett Kavanaugh, joined by Justice Sam Alito, complained that Kagan’s “catchy but worn-out rhetoric about the ‘shadow docket’ ” was “off target.” Kavanaugh insisted that the court’s order was necessitated by the “Purcell principle,” which counsels federal courts against altering voting rules on the eve of an election. As Kagan pointed out, Alabama’s primary isn’t until May, and its general election is about nine months away—hardly the kind of last-minute changes Purcell prohibits. Yet Kavanaugh inexplicably described Alabama’s election as “close at hand.” His version of Purcell would effectively immunize gerrymanders from judicial review, since another election is never that far off.
Kavanaugh also asserted that plaintiffs did not have a “clearcut” case against the state, counseling in favor of a stay. It fell on Kagan to point out that Kavanaugh had the law exactly backward: Alabama had the “especially heavy burden” of proving that it was “likely to succeed on the merits” before obtaining the “extraordinary” remedy of a stay. Kavanaugh shifted the burden onto the plaintiffs to demonstrate a “clearcut” victory, rigging the court’s rules to ensure that Alabama would win.
Racial gerrymandering cases don’t get more “clearcut” than Merrill v. Milligan, and when Roberts sides with the liberals in a VRA case, you know it’s an easy one. Yet five justices saw fit to break their court’s rules to deprive Black voters of a hard-fought, richly deserved victory. In doing so, they effectively insulated racial gerrymanders in other states, including South Carolina and Louisiana, from invalidation. And, by extension, they handed Republicans more whitewashed seats in the House of Representatives. The court’s order is not merely partisan. It is a lawless assault on the one remaining provision of the VRA protecting Black Americans in red states from political oblivion.
