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Tuesday, September 12, 2023

How the Supreme Court Should Respond to Alabama’s Defiance

How the Supreme Court Should Respond to Alabama’s Defiance

The sculpture “Contemplation of Justice” set against a dark, moody sky.
“Contemplation of Justice” by James Earle Fraser at the front of the Supreme Court Building.Damon Winter/The New York Times

By Kate Shaw

Contributing Opinion Writer

“A panel of three federal judges last week issued a scathing opinion directing the state of Alabama to comply with the Voting Rights Act. It was the latest development in a saga in which the state has repeatedly flouted the requirements of the Voting Rights Act and the rulings of federal courts, up to and including the Supreme Court.

Despite the judges’ admonishment, Alabama did not back down. In fact, it doubled down, immediately filing a notice of appeal and asking first the lower court and then the Supreme Court to put the ruling against it on hold (to preserve the possibility of using the state legislature’s map).

Alabama’s appeal confronts the Supreme Court with a profound test. The case may appear to involve a set of technical questions about one state’s legislative map. But it is more fundamentally about whether the Supreme Court should still be viewed as in any sense standing outside politics. Facing a crisis in public confidence, the court should take the opportunity to regain some of its rapidly dwindling legitimacy by sending a clear message that even its ideological fellow travelers do not get a pass from abiding by its rulings.

Alabama’s conduct in this case also reveals just how serious a problem discrimination against Black voters remains — and thus how vital the Voting Rights Act is today. The Supreme Court’s response will thus have implications beyond the bounds of this case — and it will be measured for what it reveals about both the court’s legitimacy and the future of the Voting Rights Act.

For the Alabama appeal, the Supreme Court will probably need to respond quickly. The state has represented that it must finalize its congressional districts by early October. If the court blesses Alabama’s conduct and allows the state’s defiance to stand — either after briefing and oral argument or by issuing a stay on the “shadow docket” and allowing the state’s discriminatory map to remain in place, as it did in an earlier stage of this very litigation — it will be announcing to the world that its opinions need not be heeded. If that happens, defiance by other political actors, both left and right, can be expected, and will be justified.

The court’s June decision in Allen v. Milligan was a rare and welcome surprise from a court whose recent track record has otherwise involved remaking broad swaths of the law at breakneck speed. In this case, a 5-4 majority rejected Alabama’s effort to roll back the protections of the Voting Rights Act, instead ruling that Alabama’s racially gerrymandered congressional map was likely unlawful. By doing so, it affirmed the ruling of the same three-judge panel (which includes two appointees of former President Donald Trump) that rebuked the state last week.

The majority opinion, written by Chief Justice John Roberts, concluded that the map, which created just one majority-Black district out of seven — in a state that is 27 percent Black — was most likely unlawful because it gave Black voters in Alabama less opportunity than others in the state to elect candidates of their choice to Congress.

As a result of that ruling, Alabama was required to draw a congressional map that contained a second majority-Black district or, in the words of the lower court, something “quite close to it.”

Alabama lawmakers instead produced a map that, once again, contained only one majority-Black district. In signing that new map into law, Gov. Kay Ivey did not condemn the legislature’s intransigence but rather applauded it, saying that “the legislature knows our state, our people and our districts better than the federal courts.”

In seeking to return to the Supreme Court, Alabama is probably hoping it can garner enough support to at least win a delay — one that will allow the state to keep its unlawful map in place for the 2024 election. More ambitiously, the state, perhaps emboldened by the court’s recent decision striking down the use of affirmative action in higher education, may hope that if it can peel off a single vote, this case might provide the court an opportunity to further limit or to strike down entirely the key remaining provision of the Voting Rights Act.

Alabama’s defiance comes at a time when the Supreme Court is in a precarious position with the American public. Its approval is at a record low.

The outright defiance in the Alabama case is not of an unreasoned decision, or one radically breaking with settled precedent, but from a straightforward application of the court’s cases interpreting the requirements of the landmark Voting Rights Act. The Supreme Court merely applied tests used by many courts across many years to enforce Section 2 of the act.

We are now a decade out from the 2013 Shelby County v. Holder case, in which Chief Justice Roberts pronounced, in a breathtaking act of judicial hubris, that “history did not end in 1965” and that “nearly 50 years later, things have changed dramatically.” Notwithstanding nearly unanimous congressional judgment and numerous judicial decisions to the contrary, he wrote that the Voting Rights Act’s preclearance regime was both outdated and unconstitutional.

Yet the John Roberts of Allen v. Milligan struck a markedly different note, referring to the right to vote as “fundamental,” noting the V.R.A.’s purpose to ensure minority voters’ ability to participate fully in the political process and elect representatives of their choosing and crediting the district court’s finding that “Black Alabamians enjoy virtually zero success in statewide elections.” His opinion also saw “no reason to disturb the District Court’s careful factual findings” that political campaigns in Alabama had been “characterized by overt or subtle racial appeals” and that “Alabama’s extensive history of repugnant racial and voting-related discrimination is undeniable and well documented.”

Despite this language, it would be naïve to read the court’s opinion in Allen as guaranteeing the future of the Voting Rights Act. Justice Brett Kavanaugh, who cast the deciding vote in the case, also wrote in a separate concurrence his openness to reconsidering the V.R.A.’s constitutionality at some later date. At least some of the dissenting justices are clearly eager for that date to come. But it would be disastrous for the court to use this case to reach that result.

The V.R.A. remains critical, particularly in the states — largely though not exclusively in the South — that would have been covered by the Voting Rights Act’s preclearance regime the court gutted in the Shelby County case.

Consider Louisiana, where in 2022 a district court found that the state’s congressional map violated the V.R.A. — a conclusion the ultraconservative Fifth Circuit let stand before the Supreme Court put the ruling on hold pending the outcome in the Alabama case (in June, the court allowed the Louisiana challenge to proceed). Or Georgia, where a V.R.A. challenge to the state’s 2021 legislative maps is now in trial. Or South Carolina, where the Supreme Court this fall will review a lower-court opinion concluding that a congressional district was an unlawful racial gerrymander in violation of the Constitution’s 14th and 15th Amendments. And of course, Allen v. Milligan, which, like Shelby County, arose in Alabama.

There are similar examples from other states. But the key point is that this first post-Shelby redistricting cycle has been marked by widespread discrimination against Black voters. And the Supreme Court has an opportunity in its response to Alabama’s conduct not only to regain some of its own dwindling legitimacy but also to stem some of the damage it caused in the Shelby County ruling.

Going into Allen v. Milligan, the court’s record of hostility toward the Voting Rights Act — and Chief Justice Roberts’s own critical writings on the topic, both as a justice and as a young Justice Department lawyer in the Reagan administration — gave every reason to believe that the conservative majority would use the case as an opportunity to further narrow the reach of the V.R.A.

But the court did not do that. Rather, it did what a court should do — reviewed and ultimately affirmed the lower court’s careful legal and factual findings, noted and adhered to its own many precedents enforcing the Voting Rights Act and simply applied the law.

Refusing to countenance Alabama’s lawlessness could demonstrate that the court is still capable of functioning as a court, and consistent with the rule of law. Doing that would benefit both the court and the country.

Kate Shaw is a contributing Opinion writer, a professor of law at Cardozo Law School and a host of the Supreme Court podcast “Strict Scrutiny.” She served as a law clerk to Justice John Paul Stevens and Judge Richard Posner“

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