SCOTUS (Supreme Court of the United States) Wrap Up—Part 1 June 18, 2023
Well, it’s that time of the year to review the blockbusters coming out. And I don’t mean movie blockbusters. I mean the final major decisions coming from SCOTUS (the Supreme Court of the United States) at the end of its 2022-2023 term that get issued from mid-to end June. On June 8, 2023, this conservative SCOTUS Roberts Court issued a surprise ruling in favor of voting rights that could have major effects on the 2024 congressional elections. Let’s start with the “Allen v. Milligan” opinion. In that case, the High Court stated that Alabama had diluted the power of Black voters by drawing a congressional voting map with a single district in which Blacks made up a majority (nytimes.com, Liptak, 6/08/23). In this decision, conservative Chief Justice (CJ) John Roberts wrote the majority opinion which required AL’s state legislature to draw a second district in which Black voters have the opportunity to elect representatives of their choice. CJ Roberts was joined by conservative-Trump appointee Brett Kavanaugh, and liberal Justices Sonia Sotomayor, Elena Kagan, and also liberal Biden appointee Ketanji Brown Jackson. In this 5-4 decision, Justices Clarence Thomas, Samuel Alito, and Trump appointees Neil Gorsuch and Amy Coney Barrett strongly dissented
Why is this “Allen” decision so surprising and extremely important? Because the Roberts Court has usually shown strong hostility to voting rights challenges and reapportionment litigation brought by Democrats and black plaintiffs. In the landmark 2013 “Shelby County v. Holder,” another AL case, Roberts’ SCOTUS effectively gutted Section 5 of the 1965 Voting Rights Act, (the pre-clearance clause), which had required federal approval of changes to state and local voting laws in parts of the county with a history of racial discrimination, under which AL certainly fell. In 2021, in “Bronvich v. Democratic National Committee,” an AZ case, SCOTUS, cut back on Section 2 of the Voting Rights Act (VRA), the provision at issue in the present “Allen” case. In “Bronvich,” SCOTUS limited the ability of minority groups to challenge voting restrictions. And as for reapportionment or redistricting challenges, Roberts’ SCOTUS has turned back political challenges to redistricting and seemed to hold a hostile view of even racial challenges to redistricting, although the Court claimed that racial challenges to reapportionment were still permitted (See “Rucho v. Common Cause,” nytimes.com, Liptak). CJ Roberts also frequently talked about getting “over” racial discrimination and argued that Southern Blacks were voting in huge numbers in Deep South areas (See “Shelby County v. Holder”).
In “Allen v. Milligan,” the blatant facts of racial motives were just too much for CJ Roberts and Kavanaugh to ignore. AL has seven congressional districts and that state’s voting population is about 27% Black. Only one AL district contained a majority of Black voters, where a Black Democrat has long been elected, (Cong. Terri Sewell), while the other six districts elected GOPers (Liptak, nytimes.com). In the newly reconfigured AL map drawn to take account of the 2020 Census, as constitutionally required, the GOP-controlled AL legislature created one humungous gerrymander. They packed Black voters into one sprawling district containing parts of Birmingham, the state capital Montgomery, and the rural Black Belt, a predominantly African American string of low-income counties that run across the lower tier of the state. Under the GOP’s plan, now thrown out by SCOTUS, the Black Belt (named for its dark soil that brought plantation owners and their African American slaves there), this area was split among three districts to ensure that African Americans wouldn’t have meaningful political power in more than one of them. Black plaintiffs and civil rights advocacy groups put forward alternative maps that united the Black Belt with the coastal city of Mobile to create a second Black district. This map kept the rest of the region connected to Birmingham, the only Black-majority district the AL GOP had drawn. Because of the 5-4 CJ Roberts majority decision, AL will now have to create a second Black district, which will likely end up looking like one of the plaintiffs’ maps. By throwing out the AL GOP plan, SCOTUS saved Section 2 of the Voting Rights Act. That section bars any voting procedure that “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race.” Sec. 2 ads that such an occurrence happens when “based on the totality of the circumstances, racial minorities have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” CJ Roberts wrote that the lower 3-judge court, had “gotten things right. We see no reasons to disturb the district court’s careful factual findings” that found that AL had diluted the power of Black voters with their new map (Liptak, nytimes.com, 6/08/23).
As I previously stated, this decision can have very strong political effects. Currently, the GOP controls the House 222-212, with one vacancy (cnn.com, de Vogue, 6/08/23). Democrats need 5 more seats to take back the House. According to Supreme Ct. analyst and law professor Steve Vladeck, at least three and as many as six seats in the current GOP House might otherwise have been controlled by Democrats, along with the House itself, if SCOTUS had not intervened in 2022 to keep the old district maps in control in those states. GA, TX, and Louisiana may be directly affected by the AL case. NC and OH, where GOP legislators want to redistrict, may now face successful voting rights challenges. The “Allen” AL case may, therefore, help the Democrats retake the House in 2024 (de Vogue, cnn.com, 6/08/23, Wolf, kos elections, 6/08/23). AL Dem. Cong. Terri Sewell was happy that the Court saw and reversed the voter dilution of Blacks. Atty. General Merrick Garland aptly stated, “Today’s decision rejects efforts to further erode fundamental voting rights protections, and preserves the principle that in the United States, all eligible voters must be able to exercise their constitutional right to vote free from discrimination based on their race (cnn.com, de Vogue, 6/08/23).” I will continue my summary of key SCOTUS cases in my upcoming blogposts.