On Feb. 7, in a 5-4 decision the Supreme Court entered a stay of a lower court’s order directing Alabama to redraw its congressional districts ahead of the upcoming primary elections. The Supreme Court has consistently held that the federal courts should not override a state’s election law close to an election. Yet in a dissent joined by Justices Stephen Breyer and Sonia Sotomayor, Justice Elena Kagan presented the high court’s stay as an attack on Section 2 of the Voting Rights Act, black Alabamians’ electoral power, and “all of American democracy.”
Democrats and the left-leaning media have likewise framed Monday’s joint decision in Merrill v. Milligan and Merrill v. Caster as “further undercut[ting] the Voting Rights Act.” Contrary to such claims, however, the Supreme Court’s decision yesterday did not address the merits of the Voting Rights Act claim, but merely considered the propriety of the lower court issuing an injunction so close to the election. Justice Brett Kavanaugh, in a concurrence signed on to by Justice Samuel Alito, stressed that point, while also countering many of the claims Justice Kagan made in her dissent.
To understand these competing arguments, as well as to realize how disingenuous are Kagan and Democrats’ claims that the decision is an attack on the voting rights of black Alabamians, requires both a backdrop to these lawsuits and an historical refresher concerning the state’s congressional districting.
How We Got Here
Following the 2020 census, the Republican-controlled Alabama legislature redrew the state’s congressional map. While Alabama neither gained nor lost congressional seats, the legislature drafted new borders for the seven congressional districts to account for population shifts and to equalize population between the districts. The state did this by beginning with the prior map and then altering the boundaries of the prior districts, succeeding in several cases in eliminating county splits between districts.
After passage of Alabama’s 2021 congressional redistricting plan, three groups of plaintiffs filed separate suited against John H. Merrill, the Alabama secretary of state. Together the three lawsuits alleged the 2021 redistricting plan violated the Equal Protection Clause of the Constitution and the Voting Rights Act (VRA), although the Equal Protection claim fell to the wayside during the lower court proceedings. Instead, the parties and the court focused on the VRA, with the plaintiffs seeking a preliminary injunction under Section 2.
Section 2 of the VRA provides that “[n]o voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State . . . in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color . . .” In the context of redistricting plans, case law holds that a state violates Section Two “if its districting plan provides ‘less opportunity’ for racial minorities [than for other members of the electorate] ‘to elect representatives of their choice.’”
For instance, “a plaintiff may allege a § 2 violation in a single-member district if the manipulation of districting lines fragments [cracks] politically cohesive minority voters among several districts or packs them into one district or a small number of districts, and thereby dilutes the voting strength of members of the minority population.”
In a comprehensive 200-plus page opinion, a three-judge panel of the Northern District of Alabama concluded the plaintiffs had shown a likelihood of success on the merits of their Section 2 VRA claim. The court then entered a preliminary injunction directing the state legislature to, within 14 days, or by February 11, 2022, “enact a remedial plan” that would “include two districts in which Black voters either comprise a voting-age majority or something quite close to it.” In absence of the Alabama legislature doing so, the court indicated it would hire, at the state’s expense, “an eminently qualified expert to draw on an expedited basis a map that complies with federal law for use in Alabama’s 2022 congressional elections.”
Alabama requested a stay of the order, When the district court denied the motion, the state filed a motion for an emergency stay before the Supreme Court. As noted above, the Supreme Court granted that motion in a 5-4 decision, with Justice John Roberts dissenting separately from the dissent authored by Justice Kagan that justices Breyer and Sotomayor joined.
The Justices Explain Why
Under normal circumstances the granting (or denying) of a stay would merit no opinion—merely a simple order of the fait accompli. But here, likely prompted by Justice Kagan’s dissent, Justice Kavanaugh, joined by Justice Alito, explained why they voted to stay the lower court decision. That discussion exposes Democrats’ claim that the court is attacking the VRA as unfounded.
“As background,” Justice Kavanaugh wrote, the lower court “ordered that Alabama’s congressional districts be completely redrawn within a few short weeks,” before absentee ballots must be mailed for the upcoming primary elections. But first, as the court summarized, candidates must meet filing deadlines, without knowing for sure in which district to file, or maybe even in which district they live.
State and local election officials also need to prepare for the elections and, Kavanaugh noted, the lower court’s “order would require heroic efforts by those state and local authorities.” Even then, it “likely would not be enough to avoid chaos and confusion.”
That is why, as Justice Kavanaugh explained, the Supreme “Court has repeatedly stated that federal courts ordinarily should not enjoin a state’s election laws close to an election.” “That principle,” Kavanaugh stressed, “reflects a bedrock tenet of election law: When an election is close at hand, the rules of the road must be clear and settled. Late judicial tinkering with election laws can lead to disruption and to unanticipated and unfair consequences for candidates, political parties, and voters, among others.”
It was for those reasons—reasons of time—the stay issued. As Kavanaugh reiterated, “the stay order is not a ruling on the merits, but instead simply stays the District Court’s injunction pending a ruling on the merits.” “The stay order does not make or signal any change to voting rights law,” Kavanaugh stressed.
Not a Harm to ‘All of American Democracy’
Kagan argues otherwise in her dissent, but, really, her analysis came down to the fact that the lower court crafted a detailed and thorough analysis of the issues. But that doesn’t make it correct. It also does not overcome the Supreme Court’s consistent position that a stay is appropriate this close to an election. Kagan’s claim that the stay harms black Alabamians and, more broadly, “all of American democracy,” besides being overwrought hyperbole, is unsupported by the history of Alabama’s congressional districts.
For almost 50 years, Alabama’s congressional districts have remained very similar. In 1970, when Alabama dropped from eight to seven congressional districts, the state carved up districts based broadly on geography, but in the 1990s a new map was established by a court after it ordered the state congressional plan to contain a majority-black district.
Known as the 1992 plan, it remained in effect, with only minor changes coming into play in the 2000 and 2010 redistricting cycles. Significantly, the U.S. Department of Justice precleared both the 2001 and 2011 maps as consistent with the VRA—and both of those maps included only one majority-black district. As seen below, the 2021 redistricting map closely mirrors those previously approved districts, maintaining the one majority-black district, but with less zigging and zagging into the counties.
Yet now justices Kagan, Breyer, and Sotomayor pretend that keeping the status quo of one majority-black district until the Section 2 VRA claim can be resolved on the merits is an attack on black Alabamanian’s voting rights and our country’s democracy.
It is not. It is a stay. Nothing more and nothing less.