The Supreme Court is turning back the clock on election law.
BY BILL BLUM
If I asked you to name the most important opinion handed down by the U.S. Supreme Court during Earl Warren’s sixteen-year tenure (1953-69) as Chief Justice, you’d probably cite Brown v. Board of Education, the landmark, unanimous ruling that ended legal segregation in public schools.
Warren himself was asked this exact question in a televised interview with the McClatchy News Service that aired on June 25, 1969, two days after he formally stepped down from the bench. Without understating the importance of Brown, he singled out Baker v. Carr, the 1962 decision on reapportionment, redistricting, and gerrymandering that established the doctrine of “one person, one vote.”
As Warren explained:
“I think the reapportionment not only of state legislatures but of representative government in this country is perhaps the most important issue we’ve had before the Supreme Court.
“If everyone in this country has an opportunity to participate in his government on equal terms with everyone else, and can share in electing representatives who will be truly representative of the entire community and not some special interest, then most of the problems that we are confronted with would be solved through the political process rather than through the courts.”
Four years after deciding Baker, the court issued another pivotal decision in South Carolina v. Katzenbach, upholding the constitutionality of the Voting Rights Act of 1965.
Flash forward to the present day, and the Supreme Court has shifted on its axis. Now dominated by conservatives, including three hard-right members nominated by President Donald Trump, the court appears determined to turn back the clock on election law to the early 1950s and undo the last vestiges of Warren’s voting rights legacy.
The court’s latest act of electoral sabotage came in a 5-4 ruling, issued on February 7, that reinstated a new Alabama Congressional map created after the 2020 census for the state’s seven seats in the House of Representatives. Chief Justice John Roberts, the architect of much of the court’s recent voting rights carnage, was so disturbed by the majority’s decision that he joined the court’s three Democratic appointees in dissent.
In January, a three-judge federal district court panel overturned the Alabama map as an illegal “racial gerrymander” in violation of Section 2 of the Voting Rights Act. The section prohibits voting practices and procedures that discriminate on the basis of race, color, or membership in a minority language group. Private parties as well as the federal government can file civil lawsuits to enforce the act.
The new map was challenged by the Alabama chapter of the NAACP and other plaintiffs, who noted that while Black people comprise 27 percent of the state’s residents, the map concentrated one-third of Black residents into a single voting district. The net effect was to create one Black majority voting district while dispersing the rest of the Black population across the state.
In support of their suit, the plaintiffs cited a series of Supreme Court decisions on the Voting Rights Act from the 1980s and 1990s that struck down race-based gerrymanders which weaken the power of minority voters, either by “packing” minority populations into a few districts or by spreading them throughout the state, a practice called “cracking.”
The district court concluded that Alabama’s map, if fairly drawn, would either provide two districts with Black voting majorities or multiple districts “in which Black voters [would] otherwise have an opportunity to elect a representative of their choice.” The judges ordered the state to redraw the map.
At the state of Alabama’s request, the Supreme Court intervened with an emergency “shadow docket” ruling, issuing a stay of the district court’s decision without holding oral arguments or receiving a full briefing. As several academics and journalists have noted, the court’s shadow docket grew exponentially during the Trump presidency, and the trend is continuing.
As with many shadow docket matters, the court’s stay order on the Alabama map is technically temporary in nature, as the case will be taken up for full formal review next term. In the meantime, however, the map will remain in place, giving the state’s Republicans an undeserved advantage in the midterms.
While the court’s final ruling on the Alabama case remains pending, there is little reason to believe it will ultimately invalidate the rigged map. Although Chief Justice Roberts joined the court’s liberals at the shadow docket stage in opposing a stay, he could easily change course when the case is decided on the merits.
Roberts’s overall record on voting rights has been abysmal. He was the author of the 5-4 majority opinion in Shelby County v. Holder (2013), which gutted the Voting Rights Act’s “pre-clearance” provisions that required state and local jurisdictions with histories of discrimination to obtain advance federal approval before implementing changes in voting procedures.
Since then, voter suppression techniques in GOP-controlled states have proliferated at a rate not seen since the Jim Crow era.
In another crippling blow, Roberts wrote the majority opinion in Rucho v. Common Cause (2019), which held that partisan gerrymandering, no matter how extreme, presents a nonjusticiable “political question” beyond the jurisdiction of federal judges. He also joined his Republican soulmates last year in a pair of 6-3 decisions from Arizona that further weakened Section 2 of the Voting Rights Act.
Looking to Roberts to act as a savior on voting rights is a fool’s errand. As Linda Greenhouse wrote in a New York Times guest column on February 9, in reference to the Alabama map ruling, “You know the Rubicon has been crossed when the Supreme Court issues a conservative voting rights order so at odds with settled precedent and without any sense of the moment that Chief Justice John Roberts feels constrained to dissent.”
To appreciate just how far our highest court has fallen, you only need to replay Warren’s McClatchy interview. If Warren were alive today, he would likely be a vocal advocate for court reform. But, alas, his voting rights legacy is looking more and more like a mournful epitaph.