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On Tuesday evening, in an unsigned shadow-docket order, the Supreme Court awarded Alabama a massive victory in its long-running campaign to crush Black residents’ political representation. Under the guise of soberly reinstating Alabama’s elections as usual, and over the dissent of the three liberal justices, the Republican-appointed supermajority halted the latest in a lengthy line of judicial efforts to end blatant discrimination by the state Legislature against its own Black voters. The high court thus rammed into place a 2023 map that transforms a diverse, Democratic congressional district into an overwhelmingly white, Republican one by ruthlessly carving up Black communities into electoral oblivion. This map has been deemed unlawful multiple times for intentionally discriminating against voters on the basis of race, and yet SCOTUS has now ensured that it will be the operative map for Alabama’s midterms. As Justice Sonia Sotomayor wrote in her 14-page dissent against the brief, bloodless order, the court’s “unconscionable” intervention “disregards both democratic values and the rule of law.”
Although the supermajority described its handiwork as a straightforward application of April’s decision in Louisiana v. Callais, Tuesday’s decision dramatically expands the scope of that ruling. It is not a mere aftershock from Callais but a separate earthquake of the same or perhaps even greater magnitude. Following years of twists and turns in the legal system, this case has become the vehicle by which the court’s conservative supermajority not only applies its own brand-new “updates” to Section 2 of the storied Voting Rights Act of 1965 but also sweeps what remains of constitutional protections against discriminatory voting practices out the back door. It commits these crimes in an unsigned, blithely dismissive order that lacks any substantive reasoning, as it pretends to be honoring some jurisprudential lodestar it celebrates as “our colorblind Constitution.”
As we predicted after the court delivered the shock wave that was Callais, it was not just the remains of the VRA or the decades of precedent enforcing it that the court had jettisoned that day. It was the ability of racial minorities to ever succeed in challenging a redistricting plan as unlawfully racist. Tuesday’s order makes it painfully clear that Callais’ new test for rooting out intentionally discriminatory maps can never be satisfied by future challengers. Justice Samuel Alito’s majority opinion in that case had insisted that SCOTUS was altering only the act’s specific protections against vote dilution and that this would not affect the Constitution’s larger prohibitions against racially discriminatory redistricting. Yet now, without any justification, the supermajority has imported Callais’ jury-rigged standards into the constitutional rules against racial gerrymandering. It has dismissed the importance of Alabama’s racially polarized voting as simple partisan preference. And it has scolded the lower court for failing to demand an “alternative map” from the plaintiffs that would accomplish the state’s partisan goals without diminishing Black representation.
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In reality, the Alabama map was determined, over many years and many pages of fact-finding, to have been a product of intentional discrimination. For instance, the state admitted that it had tried to keep residents with “European heritage” (that is, white people) in the same district while aggressively slicing up nonwhite communities into different districts. Under the new regime, the Roberts court’s conservatives don’t care. In fact, Tuesday’s order expressly approved of the state’s desire to keep those white voters together while divvying up Black voters to prevent the latter group from electing their preferred representative. It is now open season on minority voters in any state that seeks to crowd them out of their voting booths. In killing the sole remaining remedy for blatantly racist gerrymanders, the court has goosed the cynical partisan voting wars even further.
But beyond what the court did—on the sly, in an unintelligible order with no acknowledgment of the anticipated harms to minority voters—sits the matter of how the court did it: by guaranteeing confusion and chaos while green-lighting a new map in a looming election contest, under the guise of adhering to a rule against injecting confusion into election contests. As Sotomayor explains in dissent, the lower court’s injunction had preserved the status quo in Alabama, allowing the state to hold its imminent primary under the map that had been in place for years. By freezing that injunction, SCOTUS has unleashed havoc on those elections. Alabama will now race to reassign hundreds of thousands of voters to new districts in a matter of days. (The state had previously claimed that this process would take months.) It will hold separate elections for some voters based on how their districts have been tweaked at the eleventh hour. In some counties, a skeleton crew of three election officials will be forced to work around the clock to change tens of thousands of voter registrations.
For years, the conservative supermajority has insisted that federal courts adhere to the Purcell principle, a judge-created regulation against judges altering voting practices on the eve of an election. Now it has jettisoned that standard when a state proclaims a compelling interest in rushing through racist maps to help Republicans pick up a seat in Congress. In short, the court has created an irrefutable rule that lawmakers can modify election procedures immediately before an election if it advantages Republicans. It has layered this flagrantly partisan doctrine atop a virtually unrebuttable presumption that GOP legislatures always behave in good faith and never try to break the law. This presumption, Sotomayor points out, is especially inappropriate here, given that just three years ago, the Supreme Court itself ruled that Alabama must create the second diverse opportunity district, which it has now abolished, and the state adamantly refused to comply with that order. So, in addition to its many other sins, SCOTUS has just rewarded Alabama Republicans for defying its authority.
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In her incandescent dissent, signed in full by Justices Elena Kagan and Ketanji Brown Jackson, Sotomayor does not just lay waste to the merits of the decision in this instance. She also pans out to illuminate the real harms inflicted by a court that has, at the last minute, annihilated the prospect of an orderly administration of Alabama’s elections under cover of lawful judicial restraint. The supermajority, she contends, has chosen the path of “chaos,” of sowing uncertainty, of destabilizing systems that have stood fast for decades, and the effects on democracy and the rule of law will be catastrophic. “The court’s decision,” she writes, “inflicts two grave harms on the public. It debases the democratic process by upending Alabama’s entire election in the name of permitting Alabama to discriminate against Black Alabamians. It also corrodes the rule of law by rewarding Alabama’s gamesmanship and outright defiance of court orders.” The supermajority has no response to this charge; to the contrary, it entirely ignores the astounding, enduring harm to voters that Sotomayor lifts up for all the world to see.
What the Roberts court has just wreaked goes beyond handing an extra House seat to the GOP in the upcoming election, and even beyond rewarding states now incentivized to make last-second changes to election rules in order to evade judicial review. What these justices have done will also surely supercharge confusion for voters and well-meaning election administration officials. What’s more, it will throw up a nationwide bat signal that elections can be rigged with cynical legal moves, and that voters, election officials, lower courts, and civil rights advocates would be correct to assume henceforth that the very concept of equal voting rights has been rendered a sham. At a time when free and fair elections are already under relentless partisan assault, and when public confidence in the institution of democracy is fragile at best, there may be no more fundamentally lawless, nihilistic action imaginable for a court that styles itself as “supreme.”
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