Even for experts who follow the U.S. Supreme Court closely, there was something puzzling about an emergency decision by the justices on Wednesday.
In an unexpected move, the court decided to remove new districts for the Wisconsin state legislature that had been chosen by the state Supreme Court. But what was even more surprising was that the court’s conservative majority seemed to be doing its utmost to attack the Voting Rights Act, one of the most important civil rights laws designed to prevent discrimination in US elections. . “Besides Turning Your Head” That’s how Michael Li, a redistricting expert at the Brennan Center for Justice, described it. “Weird,” observed Richard Hasen, an election law expert at the University of California at Irvine. David Wasserman, a redistricting expert at the nonpartisan Cook Political Report, tweeted that the Supreme Court had entered “uncharted territory”.
The court‘s decision in the Wisconsin case was the latest in a series of decisions that have left little to be said about how aggressively it attempts to weaken Section 2 of the Voting Rights Act ( VRA), the most powerful provision of the law, which prohibits racial discrimination. discriminatory electoral practices. The court does not hide its skepticism about the use of race in redistricting, even when it is used to protect minority voters, and makes it harder for litigants to justify taking race into account when the lines of district are redesigned.
“The super majority of conservative justices on the Supreme Court have become rather emboldened. They have a narrow view of the scope of the suffrage law. And they are not shy about enforcing that as quickly as possible,” Hasen said in an interview “The court is increasingly aggressive and as a body increasingly willing to take risks to fully implement the legal and policy preferences of judges without it being tempered by concerns about perceptions and legitimacy.”
The court’s hostility to the Voting Rights Act comes at a time when Republican legislatures across the United States are passing a wave of new voting restrictions that many see as thinly veiled efforts to make it harder to vote. black and Latinx Americans. Voting rights groups have increasingly fewer tools to challenge these restrictions. This is the first redistricting round since 1965 where states with a history of voter discrimination do not have to have their maps approved before they go into effect, under a provision of the Voting Rights Act.
When the Supreme Court gutted this provision in 2013, Chief Justice John Roberts pointed to section 2 as a powerful tool that litigants could use to challenge discriminatory election laws. The court is now making it harder to win cases under this provision.
The court recently used an emergency case file – called a ghost file – to issue consecutive voting rights rulings for two other cases with little reasoning or information – sometimes both. Last month, the court blocked a lower court’s decision that would have required Alabama to set up an additional black-majority congressional district. In another shadow case decision this month, three of the court’s justices adopted a fringe legal theory that courts cannot second-guess state legislatures on election matters.
“It’s a sign that a lot of the brakes have loosened,” said Stephen Vladeck, a law professor at the University of Texas at Austin who is studying the phantom filing. “It’s a sign that the court is increasingly willing to do whatever the court wants to do, despite procedural constraints and awkward timing.”
The Wisconsin case came to the Supreme Court after an unusual set of circumstances and was not really designed to be a dispute over consecutive voting rights. “That’s the most troubling aspect of this,” said Deuel Ross, an attorney with the NAACP Legal Defense and Educational Fund, who frequently litigates Section 2 redistricting cases.
After the state’s Democratic governor and Republican legislature couldn’t agree on a map, the state Supreme Court chose one that added an additional black state assembly district near Milwaukee to accommodate the growing black population. The Republican Legislature objected to the use of race in the drawing of this district and made an emergency request to the Supreme Court of the United States to prevent the map from going into effect.
The Supreme Court had options. She could have acceded to this request and asked for additional information and a plea. He could have denied the request and waited for a full challenge from the new district to fight his way through the lower courts, where much evidence would have been submitted as to whether the additional district was necessary.
Instead, he issued an unsigned seven-page order telling the Wisconsin Supreme Court what was needed to justify drawing an additional district. “The question that our previous VRAs pose and that the court did not answer is whether a racially neutral alternative that did not add a majority-black seventh district would deprive black voters of equal opportunity policies,” the court wrote.
“It’s just really a signal that they don’t like VRA and they wanted to say something about VRA,” Li said. “It’s not even well hidden now. It’s as if they were shooting at the VRA.
“This is a court that is not comfortable sorting voters into precincts based on their race and wants to know why you are doing this,” he added. “The real question is whether they are re-phrasing the test in a way that makes it virtually impossible to win a Section 2 case or whether there is a reasonable universe of surviving cases.”
Another reason Wisconsin’s decision was so notable was its timing. The Supreme Court recently adopted a general idea, called Purcell’s Principle, that courts should not intervene in election disputes when an election is near.
Candidates are expected to start circulating election petitions in a few weeks, and Wisconsin’s primary is set for Aug. 9. The Wisconsin Elections Commission, which oversees elections in the state, told the U.S. Supreme Court that any rulings after March 15 “would increase the risk of errors.” The Supreme Court released its decision sending Wisconsin back to the drawing board eight days after that deadline.
This moment raised eyebrows because of a decision written by Justices Kavanaugh and Alito in the Alabama case. Writing in early February, the two conservative justices said the May 24 election in Alabama was too close to justify imposing new maps. But in another North Carolina redistricting case in early March, Alito penned a ruling, joined by Neil Gorsuch and Clarence Thomas, saying he wasn’t too close to North Carolina’s March 17 primary. cancel the cards that were contested there.
“The obvious cynical explanation is that when Purcell’s principle helps Republicans, apply it. And don’t do it when it hurts them,” Hasen said.
Ross, the lawyer for the DFL, said the Supreme Court ruling underscores the need to look elsewhere to protect voting rights.
“It’s been a long time since the courts have been the saviors of our democracy,” he said. “As the courts become less and less sensitive to these kinds of claims, it becomes more important that people are engaged not only at the national level … but what is happening at the local level of what is happening in your council municipal, school board.
“All of this becomes more important the less sensitive the court is to voters of color under the Voting Rights Act.”