The Shadow Docket Deals the Voting Rights Act Its Latest Blow

By Dewey Warner.

By a 5–4 vote, the U.S. Supreme Court issued an order on February 7 granting an application for a stay in Merrill v. Milligan. The Alabama case is the first challenge to a congressional map to reach the Court during the latest round of redistricting following the 2020 census. The case is a consolidation of multiple lawsuits brought against the state by voters, community organizations, and civil rights groups such as the Alabama chapter of the NAACP. The plaintiffs allege that Alabama’s new congressional map dilutes the votes of Black Alabamians by placing too many Black voters into a single district in violation of the Voting Rights Act. In January, a District Court panel agreed, striking down the map and ordering that a new one be drawn. Without fully hearing the case, however, the Supreme Court has reinstated Alabama’s congressional map through a stay order notably short on detail. The stay ignited immediate controversy, stoking alarm about the redistricting process nationwide and the future viability of the Voting Rights Act.

THE LEGACY OF THE VOTING RIGHTS ACT

The Voting Rights Act of 1965 is perhaps the most impactful and effective civil rights legislation ever enacted at the federal level. Passed more than a decade into the Civil Rights Movement (over the opposition of Southern segregationist politicians), the Act was one of several pieces of legislation crafted in response to widespread grassroots activism led by Black Americans. This particular legislation was passed shortly after nationally televised brutal violence against marchers in Selma, Alabama. The Act sought to finally protect rights that were guaranteed under the Fourteenth and Fifteenth Amendments a century earlier but that had been trampled upon ever since. Specifically, it sought to eliminate persistent disenfranchisement and barriers to voting on the basis of race through greater federal regulation of elections. The Act accomplished this through two key provisions: Section 2, which is a general prohibition on voting procedures that discriminate on the basis of race, and Section 5, which required states with a history of racial discrimination in voting to obtain preclearance at the federal level before altering voting procedures. Section 2 is often utilized to challenge electoral maps that dilute the votes of racial minorities by packing these voters into districts—a form of racial gerrymandering that the Supreme Court has barred.

In the decades after its passage, the Voting Rights Act became a bipartisan hallmark of election law that was consistently renewed by Congress without much issue. In the last decade, however, the Supreme Court has increasingly chipped away at the Act’s protections and generally constrained federal oversight of elections. In 2013, the Court dismantled Section 5, with Chief Justice Roberts raising eyebrows in Shelby County v. Holder with his declaration that the provision was no longer necessary because the threat of racial discrimination in voting was gone. In the 2019 case Rucho v. Common Cause, the Court decided that partisan gerrymandering claims—no matter how egregious a map’s partisan skew—are completely beyond the purview of federal courts. And in 2021, in Brnovich v. Democratic National Committee, the Court upheld against Section 2 challenges two Arizona laws that restrict certain forms of ballot casting and were alleged to be racially discriminatory. In doing so, the Court took the opportunity to craft a wholly new test for assessing Section 2 challenges that is considerably more difficult to satisfy and is highly deferential to states enacting allegedly discriminatory election laws.

ALABAMA REDISTRICTING AND SECTION 2 COLLIDE

This past November, Alabama adopted a new congressional map that includes one majority-Black district out of the state’s total number of seven (the same breakdown as the previous map). That lone district encompasses an enormous number of Black voters and is contorted to include both Birmingham and Montgomery, the state’s second- and third-largest cities with populations that are 68% and 60% Black, respectively. Although 27% of Alabama’s residents are Black, this single majority-Black district amounts to just 14% of the state’s congressional seats. The lawsuits that were consolidated into Merrill v. Milligan argue that packing so many Black voters in Alabama into one non-compact congressional district when a second district containing a sizable Black population could have been drawn, dilutes the votes of Black residents and constitutes a voting procedure that discriminates on the basis of race in violation of Section 2 of the Voting Rights Act. In an extensive January 24 opinion, a three-judge panel of the Northern District of Alabama endorsed this view, stating that the map violated Section 2 and that a new map was required.

THE SHADOW DOCKET INTERVENES

Had the Supreme Court merely decided to hear this case on appeal, that decision would still have sparked a hefty dose of controversy. Although the Court gave its stamp of approval to partisan gerrymandering in Rucho, it has long held that racial gerrymandering through tactics like vote dilution is a different story and is barred by Section 2. This was unchanged by the weakening of Section 2 claims in the Brnovich ruling, as that case dealt with laws regarding ballot casting rather than redistricting. Deciding to hear a vote dilution case less than a year after Brnovich would have signaled further interest in weakening Section 2 by reexamining the ban on racial gerrymandering.

But the Supreme Court did more than just place the case on next term’s docket. It also tossed aside the District Court’s order, reinstating the map deemed racially discriminatory, and it did so before even hearing the case. With the Supreme Court not expected to actually hear the case until the 2022–2023 term, with a ruling as late as summer 2023, the decision to reinstate the map guarantees that it will be used for the 2022 primary and general elections. Thus, the 2022 congressional delegation from Alabama will include just one Representative from a majority-Black district. This significant intervention from the Court’s five most conservative justices was accompanied only by a six-page concurring opinion authored by Justice Kavanaugh and joined by Justice Alito. The opinion claimed that the Court was bound by the Purcell principle to reinstate the map so as not to engage in “late judicial tinkering” with an election “close at hand” (despite, as Justice Kagan pointed out in dissent, that Alabama’s primary election is four months away and the general election is nine months out). The remaining three justices in the majority were silent.

Therein lies the problem. The Court’s practice of issuing rulings that have significant substantive effects without fully hearing the case and with very little explanation is increasingly derided as the Court’s “shadow docket.” It is a growing source of outcry as the practice has increased in frequency in recent years, most controversially in the Court’s refusal last September to block Texas’s Senate Bill 8, which practically outlawed abortion in the state. Justice Kagan (joined by Justices Breyer and Sotomayor) explicitly joined this outcry in her dissent from the Merrill order, denouncing the ruling as “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.” Even Chief Justice Roberts, who has a decades-long history of opposition to the Voting Rights Act and has consistently sided against voting rights while on the Court, dissented separately from the order. Roberts indicated that he supported hearing the case but not granting the stay, writing that “the District Court properly applied existing law in an extensive opinion with no apparent errors for our correction” and “in my view the District Court’s analysis should therefore control the upcoming election.”

CONCLUSION

Although the Supreme Court’s Merrill order only applies to Alabama’s new congressional map, its potential ramifications extend far beyond one state. The stay represents yet another instance of the Court’s willingness to wield barely-clarified but hugely impactful shadow docket rulings. It also signals to those currently involved in redistricting, and parties who may wish to challenge new maps (or already are doing so), that the Court is willing to show a tremendous amount of deference to states—even when they stand accused of racial discrimination—to ensure that their maps are used in 2022 elections. Longer term, the decision to fully hear the case after issuing the stay could spell doom for perhaps the most successful federal civil rights legislation ever achieved in the United States.

"Protect the Voting Rights Act rally at the SCOTUS" by SEIU International is licensed under CC BY-NC-SA 2.0

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By Dewey Warner

J.D. Candidate 2023

Dewey Warner is a 2L Staff Writer raised in Kenosha, WI. He graduated from the University of Wisconsin-Madison in 2016 with a B.A. in History and minors in Middle East Studies and Integrated Liberal Studies. He is interested in constitutional and administrative law. In his spare time, Dewey enjoys collecting vinyl records, following Chicago sports, and hanging out with his puppy, Ozzy.

The opinions expressed herein are those of the individual contributors to the ASLJ Blog and should not be construed as the opinions of the Arizona State Law Journal or the Sandra Day O’Connor College of Law at Arizona State University.