This Supreme Court is about to whittle away what little is left of federal voting rights protections. This week, a bare majority of the Supreme Court allowed Republican-drawn congressional districts to remain in effect in Alabama after a panel of three federal judges (two of whom then-President Donald Trump appointed) correctly ruled that Alabama’s congressional map likely violated Section 2 of the 1965 Voting Rights Act.
This Supreme Court is about to whittle away what little is left of federal voting rights protections.
The problem with the newly drawn congressional districts is that while Black people make up more than one-fourth of the voting-age population in Alabama, they would be the majority in only one of the state’s seven congressional districts. This means, as the unanimous three-judge panel (composed of the two Trump appointees and a then-President Bill Clinton appointee) found, the voting power of Black voters would be diluted under Alabama’s map. If Black people are only a majority in one of the seven congressional districts, then it is likely that they will only be able to garner enough support to elect a candidate of their choice in that one district. And diluting the voting power of a racial minority is prohibited under the federal Voting Rights Act, at least for now.
Alabama’s emergency appeal to the Supreme Court on the court’s so-called shadow docket means the court’s decision was made without the benefit of a full briefing on the issues or oral arguments. The court will hear arguments about Alabama’s congressional maps, likely next term. But the court’s preliminary decision is still hugely problematic for the next election and those to come.
In the short term, the Supreme Court’s decision to allow Alabama’s map to remain in effect means these are the district lines that will almost certainly be in place during the 2022 election cycle. Justice Brett Kavanaugh voiced concern that it is simply too late in the election cycle to order Alabama to draw new district lines. The legal term for this particular concern is “hogwash.”
First, when they need to, states can redraw lines quickly or even push back the dates of primary elections. As Justice Elena Kagan pointed out in her dissent, Alabama drew the disputed map in approximately one week. The state’s primary election is May 24. Alabama has plenty time.
Second, this is a situation in which there is, in fact, a demonstrated need for Alabama to redraw its lines. The idea that a likely violation of federal voting rights should be allowed to stand throughout an election cycle just because it may be considered relatively late in the game grossly undervalues the importance of voting power. Imagine breaking your arm and your doctor telling you to just wait it out a few weeks because she’s really busy. Your arm is broken now. The harm is happening at this moment. And you need it fixed now.
This brings us to the long-term implications of the court’s decision. We have five members of the court who are comfortable allowing a likely violation of the Voting Rights Act to exist throughout a full election cycle. Again, two judges appointed by Trump concluded that Alabama’s congressional map likely illegally dilutes the voting power of Blacks. We have five doctors asking us to sit tight with a broken arm. These are doctors who we can suspect aren’t concerned with our long-term health. What does that mean? It means this is a Supreme Court that doesn’t care about the Voting Rights Act, period, and is unlikely to do anything but further erode the already eroded protections in what is left of the landmark civil rights bill.
There’s an obvious parallel here to the Supreme Court’s treatment of Texas’ restrictive abortion law. There’s an obvious parallel here to the Supreme Court’s treatment of Texas’ restrictive abortion law, which bans abortions after six weeks of pregnancy. The law clearly violates the court’s precedent in Roe v. Wade and Planned Parenthood v. Casey, but the court’s decision to let that law remain in effect tells us exactly how much it cares about abortion rights, which is not much at all. It’s worth pointing out that the court’s decision was made without Chief Justice John Roberts. The court is now so conservative that it can afford to lose the vote of the conservative chief justice. Perhaps you’re wondering, “Could it be that Roberts just isn’t that conservative when it comes to voting rights issues?” No, it could not be that. Roberts is the one who authored the court’s decision in Shelby County v. Holder, which, in 2013, gutted half of the Voting Rights Act. Roberts has been crusading against the Voting Rights Act since he was a young lawyer working for the federal government. Roberts’ decision to side with the liberal justices is likely about nothing more than Roberts being Roberts. The chief justice wants it to appear that he is presiding over a court that is an independent institution that respects its past precedents. In this case, he said the three-judge panel correctly applied current case law. But chances are he’ll respect that precedent just long enough to wait for the court to hear the case next term, when he can then side with the conservatives to overturn that precedent. Roberts almost certainly wants to get to the same endpoint as his more conservative colleagues — that is, a near evisceration of federal voting rights protections. He just wants to take the longer, scenic route to get there. Five members of the court appear to be valuing an alleged administrative burden on states to redraw district lines that comply with federal law more than they value minority voting rights. This could give every state one free pass at a voting rights violation, as long as they wait long enough to impose them. But, of course, that will only remain true for as long as we have a Voting Rights Act that provides any real protection. The court’s decision to take up the challenge to Alabama’s congressional map next term is a sign that the court is set to peel away at an already weakened Voting Rights Act. This is an ominous sign for anyone who cares about ensuring the voting rights of racial minorities — which, by the way, should be all of us.
Jessica Levinson is a Loyola Law School professor and MSNBC columnist. 
