But it’s on life support
From Professor Melissa Murray:
Some initial thoughts on Allen v. Milligan.
Media is trumpeting this as a “victory” for the Voting Rights Act. And it is. And I don’t want to be a turd in the punchbowl… but this is pretty weak sauce from this Court.
First, this doesn’t “strengthen” the VRA. It preserves the status quo. And the status quo is that this Court has done an A+ job of hobbling the VRA over the last 10 years.
In 2013’s Shelby County v. Holder, it eviscerated the preclearance formula. The preclearance regime required states with a history of voting discrimination to first “preclear” any changes to their voting rules and regs with the DOJ or a three-judge federal court panel
The Court invalidated the preclearance formula on the ground that progress had been made and minorities were voting and blah blah blah.
This progress narrative prompted RBG to note in dissent that throwing out the preclearance formula was like throwing out your umbrella in a rainstorm because you weren’t getting wet. She was right.
SCOTUS didn’t invalidate the whole preclearance regime–just the formula. And Congress could have written a new preclearance formula… if it weren’t super-polarized and dysfunctional.
As it happened, Congress did not write a new formula. And the preclearance regime died.
Which has led to an uptick in laws that seem aimed at suppressing the vote among certain constituencies.
When confronted with this possibility in Shelby County, CJ Roberts, who wrote for the 5-4 maj, assured us that Sec 2 of the VRA remained a viable path for dealing with this.
Except that the Court was determined to hobble that too!
And it did in 2021’s Brnovich v. DNC, which made it harder for litigants to establish violations of Section 2.
And that’s not all!
After the 2020 census Alabama drew its new Congressional map… and it seemed to many that the map was drawn for the purpose of diluting the electoral power of Black people, who comprise 27% of the state’s population
Black voters, represented by the @NAACP_LDF and other groups, sued the state under Section 2, arguing that the map, as drawn, was an unconstitutional racial gerrymander.
A lower federal court agreed with the Black voters and said that the map was an impermissible gerrymander and that AL had to redraw its map before the midterm election.
AL appealed the matter to SCOTUS on the shadow docket. SCOTUS, in a 5-4 decision, stayed the lower court’s ruling, allowing the map to go into effect and be used in the 2022 midterm election.
You will recall that in the 2022 midterms, the Democrats lost control of the House. This was due to a lot of different factors, but many have noted the impact of gerrymandering and other democratic distortions in the outcome of the election.
SCOTUS in 2019’s Rucho v. Common Cause said that federal courts could not review (and adjudicate) claims of partisan gerrymandering.
And in February 2022, it allowed AL’s map–the map it now agrees was an unconstitutional racial gerrymander–to go into effect.
So, yes, today’s decision is a victory that maintains the status quo for Section 2 of the VRA.
But it is cold comfort when one considers the way this Court through its decisions has actively distorted the electoral landscape and made true representative government more elusive.
I think it’s “rule-washing.” Roberts and Kavanaugh are political animals and they know the reputation of the Court is shit. So they’re going to throw a few bones to take some of the heat off. It’s good, as far as it goes. But no on e should be comforted that they are actually moderating.