The Supreme Court was in the news Wednesday after delivering a second blow to the Voting Rights Act in just over a month.
The latest ruling, issued late Tuesday, cleared the way for Alabama to use a congressional redistricting map that favors Republicans by eliminating one of the two existing districts where voters had elected a Black Democrat to Congress.
In late April, the Supreme Court's conservative supermajority all but gutted what remained of the landmark 1965 Voting Rights Act. The ruling set off a mad scramble, particularly in some Southern states, to undo previous redistricting maps in an effort to gain greater partisan advantage and in the process to eliminate districts where Black voters had a fair chance of electing their candidate of choice.
Leading the pack was Alabama, a state with its own distinct history of racial discrimination. Indeed, just three years ago the Supreme Court required the state to create a second district where African American voters could prevail. On Tuesday night, however, the court effectively reversed its three-year-old ruling. In doing so, it also chastised the three-judge federal court in charge of the case for failing to follow the high court's orders.
That three-judge panel—including two Trump appointees—ruled unanimously that in light of the evidence it had extensively reviewed just weeks ago , the map that Alabama was pushing was illegal on different grounds. Specifically, the lower court said that whatever the rules were for the Voting Rights Act, the Alabama legislature's map was "tainted by intentional race-based discrimination" and thus violated the Constitutional guarantee to equal protection of the law.
The Supreme Court's repudiation of the lower court decision last night was only the latest case in which it has played a role in changing the congressional maps for Louisiana, Texas, Virginia, and California. The decisions in those cases mostly benefitted the Republican party.
The four-page unsigned opinion Tuesday seemed to many election law experts to encourage more, not less chaos, as did the court's handling of its late April decision.
"They've closed the door on intentional discrimination claims," said UCLA law professor Richard Hasen.
What's more, he said, the decision made it extremely difficult for Congress to act, even if it wants to.
"What the court has done is denude Congress of its powers that were given after the Civil War," Hasen said, noting that Congress enacted the Fourteenth Amendment to ensure equal voting rights for former slaves.
Most galling to Hasen, however, is the court's treatment of its own decision from 2006, a decision that warned courts not to make major redistricting changes close to an election because such late-breaking changes caused voters to be confused when they went to the polls. That all seemed to go by the wayside in Tuesday's Supreme Court decision.
"What the court said last night in the Alabama ruling," said Hasen, has nothing to do with confusion. Rather under the new legal regime, federal courts "can't interfere in the period before the election. but if a state wants to make a last-minute change, that's just fine." That, in turn makes for "perverse incentives," he said. "What it says is that a state can make an unconstitutional last-minute change, and federal courts are powerless to do anything about it."
Notre Dame law professor Derek Muller has an equally critical, but less apocalyptic, view. He says the court seems to want to wash its hands of political cases, the result being maximum gerrymandering, whether the state is Alabama or California.
He too sees the court's most recent decisions in voting rights cases as limiting how Congress can go about protecting minority voters. That said, there are ways that Congress could still act, he says.
"Even if you did very simple restrictions, such as…you can only engage in redistricting once a decade or you can't change the rules for redistricting more than a year before an election. Those are ways to prevent some of the opportunism we have," Muller observes.
Alternatively, he says, Congress could pass legislation barring states from splitting up heavy concentrations of minority voters into several different districts. That would get rid of redistricting that deliberately splits areas with heavy minority populations. But he admits that all of these relatively simple solutions will be very difficult to achieve.
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