Even for experts who closely follow the US supreme court, there was something stunning about an emergency decision from the justices on Wednesday.
In an unexpected move, the court decided to throw out new districts for the state legislature in Wisconsin that had been picked by the state supreme court. But what was even more surprising was that the court’s conservative majority seemed to go out of its way to attack the Voting Rights Act, one of the most important civil rights laws designed to prevent discrimination in US elections. “Extra headspinning,” was how Michael Li, a redistricting expert at the Brennan Center for Justice, described it. “Bizarre,” observed Richard Hasen, an election law expert at the University of California, Irvine. David Wasserman, a redistricting expert at the non-partisan 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 rulings that have left little pretense of how aggressively it is trying to weaken section 2 of the Voting Rights Act (VRA), the most powerful provision of the law, which outlaws racially discriminatory voting practices. The court is not hiding its skepticism of the use of race in redistricting, even when it’s used to protect minority voters, and is making it harder for litigants to justify considering race when district lines are redrawn.
“The supermajority of the conservative justices on the supreme court has become pretty emboldened. They’ve got a narrow vision of the scope of the Voting Rights Act. And they are not being shy about enforcing that as quickly as they can,” Hasen said in an interview. “The court is increasingly aggressive, and as a body is increasingly willingly to go out on a limb to fully implement the justices’ legal and political preferences without it being tempered by concern about perceptions and legitimacy.”
The court’s hostility towards the Voting Rights Act comes at a moment when Republican legislatures across the US are passing a wave of new voting restrictions that many see as thinly veiled efforts to make it harder for Black and Latinx Americans to vote. Voting rights groups have fewer and fewer tools to challenge those restrictions. This is the first redistricting cycle since 1965 that states with a history of voting discrimination don’t have to get their maps pre-approved before they go into effect, under a provision of the Voting Rights Act.
When the supreme court gutted that provision in 2013, Chief Justice John Roberts pointed to section 2 as a powerful tool litigants could use to challenge discriminatory voting laws. The court is now making it harder to win cases under that provision.
The court has recently used a docket of emergency cases – called the shadow docket – to issue consequential voting rights rulings for two other cases with little reasoning or briefing – sometimes both. Last month, the court blocked a lower court’s ruling that would have required Alabama to implement an additional Black-majority congressional district. In another shadow docket ruling this month, three of the court’s justices embraced a fringe legal theory that courts cannot second-guess state legislatures on election matters.
“It is a sign that many of the brakes have come off,” said Stephen Vladeck, a law professor at the University of Texas at Austin who studies the shadow docket. “It’s a sign that the court is increasingly willing to do whatever the court wants to do, procedural constraints and sort of awkward timing notwithstanding.”
The Wisconsin case arrived at the supreme court after an unusual set of circumstances and was not really set up to be a consequential voting rights dispute. “It is the most disturbing aspect of this,” said Deuel Ross, an attorney at the NAACP Legal Defense and Educational Fund who frequently litigates section 2 redistricting cases.
After the state’s Democratic governor and Republican legislature could not agree on a map, the state supreme court picked one that added an additional Black state assembly district near Milwaukee to account for Black population growth. The Republican legislature objected to the use of race in drawing that district and made an emergency request to the US supreme court to block the map from going into effect.
The supreme court had options. It could have granted that request and requested further briefing and oral argument. It could have rejected the request and waited for a full challenge to the new district to work its way through lower courts, where there would have been extensive evidence submitted about whether the additional district was needed.
Instead, it issued an unsigned seven-page order telling the Wisconsin supreme court what was needed to justify drawing an additional district. “The question that our VRA precedents ask and the court failed to answer is whether a race-neutral alternative that did not add a seventh majority-black district would deny black voters equal political opportunity,” the court wrote.
“It’s just really a signal that they don’t like the VRA and they wanted to say something about the VRA,” Li said. “It’s not even well hidden now. It’s like they’re gunning for the VRA.
“This is a court that’s not comfortable sorting voters into districts based on race and wants to know why you’re doing that,” he added. “The real question is whether they reformulate the test in a way that makes it practically impossible to ever win a section 2 case or whether there’s some reasonable universe of cases that survives.”
Another reason the Wisconsin decision was so notable was its timing. The supreme court has embraced a general idea recently, called the Purcell principle, that courts should not intervene in election disputes when an election is close.
Candidates are set to begin circulating petitions for office in just a few weeks and Wisconsin’s primary is set for 9 August. The Wisconsin Elections Commission, which oversees elections in the state, told the US supreme court any decision later than 15 March would “increase the risk of errors”. The supreme court issued its ruling sending Wisconsin back to the map drawing board eight days after that deadline.
That timing 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 it was too close to Alabama’s 24 May election to justify imposing new maps. But in a different redistricting case in North Carolina in early March, Alito wrote a ruling, joined by Neil Gorsuch and Clarence Thomas, saying it was not too close to North Carolina’s 17 March primary to overturn maps that were being challenged there.
“The obvious cynical explanation is that when the Purcell principle helps Republicans, apply it. And don’t when it hurts them,” Hasen said.
Ross, the LDF attorney, said the supreme court’s ruling underscored the need to look elsewhere to protect voting rights.
“It’s been a long time since the courts were the saviors of our democracy,” he said. “As the courts become less and less responsive to these kinds of claims, it becomes more important that people are engaged not just at the national level … but what’s happening at the local level of what’s happening at your city council, school commission.
“All of that becomes more important, the less the court is responsive to voters of color under the Voting Rights Act.”