Why We Shouldn’t Fear Chief Justice John Roberts as More Clouds Loom Over the Future of Racial Gerrymanders and the Voting Rights Act – Opinion

On Monday, The US Supreme Court lifted an injunction imposed on Alabama by a group of federal judges. This would have stopped Alabama from finalizing the congressional district maps and turned the 2022 election in Alabama into chaos. (See: The Supreme Court Drops the Hammer against Democrat Redistricting games and sets up a coming death blow). The case came to the court by way of an appeal (Alabama Appeals the Rejection of Its Redistricting Map and the Left May Get More Than It Wanted or Expected) after the Alabama map that has been used since 1990 was challenged by progressive activists who decided that they could use the courts to force Alabama to create an additional “minority-majority” district. This is not about racial representation. Instead it’s about creating Democrat House seat.

My original post noted that leftist lawyers, especially Ian Milhiser from Vox.com were anticipating that the Supreme Court will use the Alabama case to pull out the last remnants of the racial spoils that have been baked into redistricting legislation.

Based on an exemption in the Voting Rights Act that prohibited racialgerrymanders, the lower court directed the state legislature to redeploy the map. The judges had to spend 225 pages going through the extremely complex test. Thornburg v. Gingles (1986), which asks whether a state election law that imposes a disproportionate burden on racial minorities “interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by [minority] and white voters to elect their preferred representatives.”

As I’ve written, the legal rule that the Court announced in Gingles — which governs many redistricting cases filed under the Voting Rights Act — is a mess. The law advises judges to weigh no less than Neun There are many factors. It would make sense for the state to request that the Supreme Court create something simpler to assist lower courts in sorting through such cases. Alabama could have chosen this path, but it would be reasonable to propose a modification. Gingles test, it’s possible that such a modification could have helped them defend their maps.

Alabama, however, does not do the exact same thing in the Merrill case. Instead, it proposes a new rule that, if adopted by the Supreme Court, could effectively make it impossible to challenge a racial gerrymander in federal court.

At one point, for example, Alabama quotes favorably from a 1994 opinion by Justice Clarence Thomas, which was joined only by one other justice, and which suggests that no voting rights violation occurs even if a state gerrymanders its districts to make it impossible for racial minorities to elect their preferred candidate. Under this theory, “minorities unable to control elected posts would not be considered essentially without a vote; rather, a vote duly cast and counted would be deemed just as ‘effective’ as any other.”

The state’s primary argument, meanwhile, would trap voting rights plaintiffs in a kind of Catch-22.

Milhiser’s fear was confirmed by the Supreme Court’s Monday ruling. The five votes to lift an injunction without hearing the case on its merits effectively approved Alabama’s new map for 2022 while keeping the macro issue of racial gerrymandering alive.

Merrill vs Milligan, by redstatestreiff

Rick Hasen seemed to be glum when he wrote at Election Law Blog. There are two major issues that concern Hasen. The Supreme Court is drawing a bright line about what is known as the Purcell Principle. Principle. Gonzalez vs. PurcellAccording to, courts must refrain from last-minute changes in state election laws or procedures. This will avoid confusing voters and officials. You will need to have willing partners in the judiciary, who are able to maintain the rules of the game. This is what we witnessed in 2020. The rules that are in place make fraud exponentially harder. The progressive left is more concerned about fraud than fairness.

Chief Justice John Roberts is his real terror. Roberts caught a lot of crap from the right over voting “with the liberals” to keep the injunction. Roberts voted against the Alabama map. However, his vote was not based on agreeing to the facts of the three-judge panel. Chief Justice Roberts’ dissent is reproduced below.

Although the District Court is not to be blamed for applying Gingles, we can safely say that Gingles has engendered much disagreement and uncertainty about the nature and contours a vote-dilution claim. See Gingles, 478 U. S., at 97 (O’Connor, J., concurring in judgment) (characterizing the Court’s ap-proach at the outset as “inconsistent with . . . §2’s disclaimer of a right to proportional representation”); Johnson v. De Grandy, 512 U. S. 997, 1028 (1994) (Kennedy, J., concurring in part and concurring in judgment) (warning that “placing undue emphasis upon proportionality risks defeat-ing the goals underlying the Voting Rights Act”); Gonzalez v. Aurora, 535 F. 3d 594, 597 (CA7 2008) (Easterbrook, J.) (referring to section 2’s “famously elliptical” language). See also J. Chen & N. Stephanopoulos, The Race-Blind Future of Voting Rights, 130 Yale L. J. 862, 871 (2021) (describing section 2 vote dilution doctrine as “an area of law notorious for its many unsolved puzzles”); C. Elmendorf, Making Sense of Section 2: Of Biased Votes, Unconstitutional Elections, and Common Law Statutes, 160 U. Pa. L. Rev. 377, 389 (2012) (noting the lack of any “authoritative resolution of the basic questions one would need to answer to make sense of the results test”).

For the resolution of the large number of uncertainty arising under Gingles’ jurisdiction, I would consider probable jurisdiction in Milligan. Then, before Caster is ruled, I would grant certiorari. A stay would be denied. As noted, the analysis below seems correct as Gingles is presently applied, and in my view the District Court’s analysis should therefore control the upcoming election. The practical effect of this approach would be that the 2022 election would take place in accord with the judgment of the District Court, but subsequent elections would be governed by this Court’s decision on review.

Roberts is obviously unhappy with the current state of redistricting law and doesn’t seem to think it is workable. He wants to change the standard. GinglesIt should be manageable and consistent. As I noted in my original post, given Roberts’ well-established history of hostility to racial quotas, this does not bode well for the current legal regime for redistricting. The current situation can be improved by making the rules clear and consistent.

The view of Hasen

A stay wasn’t warranted, he argued. The lower court had followed the existing law regarding redistricting and the VRA. However, he stated that the law was in a mess and should be reviewed. Put Roberts together with the 5 other conservative Justices in the majority that voted to both grant the stay and to hear the cases and there could be six votes that would read the VRA in redistricting in a horrible “race blind” way that Nick explained here and that Justice Kagan discussed today in her dissent. It could result in a drastic rework of the VRA, which would reduce minority representation, particularly in the south.

Hasen’s sentiment is echoed by s Washington Post op-ed by Nick Stephanopoulos.

Nevertheless, the court’s conservative majority might be poised to rewrite Section 2 in the way that Alabama proposes. Justice Brett M. Kavanaugh, in a concurrence joined by Justice Samuel A. Alito Jr., said that the outcome of the case was not “clearcut” in favor of those challenging Alabama’s map. This can only happen if the court plans to change the law.

Yet again, it seems that the left has overplayed their hand. Plaintiffs in a lawsuit aimed at attacking a map of 30 years-old on spurious grounds to make a political point for minor political gains. MerrillA conservative Supreme Court was given two targets: federal judges’ last-minute interference in state elections and their use of race to determine congressional boundaries. This is unlikely to go well for them.