Millions of Americans cast their votes in the midterm elections, but the Supreme Court may have been the one to actually determine control of the House of Representatives, which Republicans will now control by a narrow margin. It’s important to understand how we got here. Specifically, the fact that one major Supreme Court case and two shadow docket orders almost certainly allowed the Republican Party to gerrymander its way into this victory.
Over the past year, federal judges in three different states have found that congressional district maps likely violate the Voting Rights Act. These maps amounted to illegal racial gerrymanders which diluted the voting rights of minority voters. The solution for this problem is to replace the illegal legislative district lines with new lines, and in each case to draw an additional majority-minority district. This would have created three additional congressional districts, which happen to heavily favor Democrats. But the conservative Supreme Court stepped in to prevent this remedy.
Back in February, a five-to-four majority of the Supreme Court said Republican-drawn congressional districts in Alabama should remain in effect despite the fact that a three-judge panel (two of whom are appointees of former President Donald Trump) ruled that those congressional districts likely violated Section 2 of the 1965 Voting Rights Act. Under the Republican-drawn map, Black people would have been a majority in one of the state’s seven House districts, but are one-fourth of the voting age population in the state. A plan like this dilutes Black voting power. The solution to this problem, as the lower federal court noted, is to create another majority-minority district.
But a bare majority of the court, in a so-called shadow docket ruling, let Alabama’s likely illegal maps stand. Justices Brett Kavanaugh and Samuel Alito suggested that there simply wasn’t time to draw legal district lines before the primary elections, when — spoiler alert — there absolutely was. The fact that the Supreme Court issued this order on its shadow docket means the case came to the court as an emergency appeal, and it made its ruling without the benefit of oral arguments, a full briefing by each side, or with a decision fully explaining its reasoning. Five members of the court let Alabama’s maps go into effect, while agreeing to hear the challenge to Alabama’s districts in October. After oral arguments in the case, which were held Oct. 4, it seems clear that the court allowed Alabama’s congressional map to be used during the midterm elections, in keeping with its apparent plans to whittle away at what is left of the protections contained in the Voting Rights Act.
The Supreme Court’s order in the Alabama case had a ripple effect. In Georgia, a district court judge found that that state’s House map likely violated the Voting Rights Act. The judge concluded that the state should draw another majority-minority district. But because the Supreme Court had already signaled in the Alabama case that it was too late in the game (again, it wasn’t) to redraw the maps, the court let Georgia’s maps be used for the midterm elections as well.
In 2013, in a famous voting rights case called Shelby County, the court trashed half of the Voting Rights Act. And finally, in Louisiana, a district court judge found a likely violation of the Voting Rights Act and ordered that the state’s House legislative district maps be redrawn to include another majority-minority district. Before this could happen, the Supreme Court granted Louisiana’s emergency appeal, allowing the likely illegal district lines to be used for the midterm elections while the court considered the case out of Alabama which raises similar legal questions. Let’s also not forget or forgive another sin of the Supreme Court. In 2013, in a famous voting rights case called Shelby County, the court trashed half of the Voting Rights Act. That provision of the Voting Rights Act required that jurisdictions with a history of discrimination to check in with the federal government prior to making changes to their election laws. As luck would have it, Alabama, Georgia and Louisiana were all covered by that now-defunct portion of the Voting Rights Act. If those states had been forced to check in with the federal government prior to approving their House legislative district maps, it is very likely these maps would never have gone into effect at all. In the short term, we will have a divided government. This could all but doom President Joe Biden’s legislative agenda. And by blocking Biden’s agenda for the next two years, it will also allow Republicans to claim Biden accomplished little in the last half of his term. They won’t, of course, explain that their unwillingness to compromise led to that inaction. In the long term, we must remember that having a court that is hostile to voting rights means that all of us must work 10 times harder to get what we are entitled to: a meaningful right to vote and to make our voices heard.
Jessica Levinson is a Loyola Law School professor and MSNBC columnist. 
