5-4 Supreme Court allows Alabama to implement a congressional redistricting plan that is being challenged as illegal racial gerrymandering.
twitter.com/SCOTUSblog/status/149081426092200...
twitter.comPosted Feb 7, 2022, 10:31 PM UTC
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twitter.comConstitutionalists, except for the parts of the Constitution they don't like.
Textualists, except when they don't like what the text says.
Judicial restraint, unless they don't like what Congress did.
Alabama officials asked the Supreme Court for an emergency stay. They said that the panel’s ruling would result in “massive disruption” of the state’s elections and that “Alabamians will suffer the constitutional harm of being assigned to racially segregated districts.”
The fact that they can actually have this claim be accepted by the court shows you that SCOTUS just doesn't give a fuck about the law. It’s practically self-parody. So fucking vile.
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Amazing that even Breyer thinks the real threat to SCOTUS's legitmacy is courtpacking when the cons justify their rulings with this fucking crap.
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They ALWAYS claim this. "We can't fix it, because it will disrupt the elections!" when isn't it an election year?!? Mean while they gerrymandered it, knowing it will take time through the courts, they will win big and nothing will change.
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to be fair, SCOTUS has never really given a fuck about the law, particularly in relation to non-whites, which is why the Voting Rights Act was required 100 years after the fact to implement
the current incarnation is a farce, but ultimately, with a few exceptions, SCOTUS has never really been that great to begin with
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Constitutionalists, except for the parts of the Constitution they don't like.
Textualists, except when they don't like what the text says.
Judicial restraint, unless they don't like what Congress did.
Precedent and Constitutional text is sacred when it favors WASPy male privilege. Otherwise, expediently preserving the status quo is the utmost priority, and it's Congress' fault if that leads to unjust outcomes.
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The maps were drawn in a week iirc.
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Constitutionalists, except for the parts of the Constitution they don't like.
The VRA is not part of the Constitution.
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A person who isn’t a complete and total scumbag would acknowledge that racial gerrymandering is abridging people’s right to vote based on their race, in violation of the 15th Amendment as well as the VRA, which Congress had explicit authority in the Constitution to pass.
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Eh, dont bother. Dude is some sort of religious nut.
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Kavanaugh’s written concurrence makes no sense. If it isn’t an opinion on the merits, and the stay shouldn’t be in place so soon before an election, SCOTUS is deciding the merits of the case…without consideration of the merits. There is no way they brief, hear, and decide this by next month. He’s substituting an actual decision on the merits for one that he admits isn’t on the merits, allegedly because the merits decision isn’t timely, which his eventual opinion won’t be either.
I don’t remember him being this dumb on the DC Circuit, he seemed so pragmatic. What the fuck has gotten into him?
Also, there’s a catch-22 here. If a district court doesn’t develop enough of a record, they’ll get stayed for insufficiency, if they spend the requisite time with the facts presented to them (as Kagan points out) they run into the magical “too close to an election” barrier and can’t fix violative district lines.
EDIT: https://twitter.com/steve_vladeck/status/1490866416115142656?s=21
Missed that on my read. If either party could win on appeal, I guess we’re not doing “likelihood of success” for PIs anymore?
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I don’t think that catch 22 is an accident. It’s baked into the system and favors a status quo that is decidedly tilted.
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The calculus is pretty simple:
Precedent and text is sacred when it favors WASPy male privilege. Otherwise, expediently preserving the status quo is the utmost priority, and it's Congress' fault if that leads to unjust outcomes.
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What the fuck has gotten into him?
They want to flip the House and Senate this year.
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The implicit context is that he doesn't recognize the idea of timeliness you're describing. As recently as LULAC v. Perry, there was no expectation that plaintiffs should be able to file suit against a state's districting and get injunctive relief before the next election - it has to be resolved on the merits, which takes as long as it takes, and any elections which happen in the meantime just kinda happen.
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...which, assuming i understand correctly (not a lawyer), seems really weird to me given that the harm that would be incurred can't be remedied after the fact. it's just...wrong. morally. ethically. wrong.
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I would honestly respect it if the Court takes up the merits in like, October, and then says 'oh well Purcell principle, it's too close to the election sorry.' It would be evil, but hilarious.
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I don’t remember him being this dumb on the DC Circuit, he seemed so pragmatic. What the fuck has gotten into him?
I mean. We still don't who paid off hundreds of thousands of dollars of his debt shortly before being nominated and taking the bench.
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Friends paid him back for season tickets he fronted and he has rich parents. While it might be embarrassing to admit that your daddy paid off your debts, it's not particularly nefarious. His money is explainable; and, while we like conspiracy theories, no one has been able to prove otherwise.
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Don’t you think that we deserve to know how one of the most power public officials in the country got out of debt, even if it’s embarrassing for him?
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He admitted it was from his family after he was pressed on it. We do know. No investigation has proved otherwise, though I think they could investigate further. Legally he disclosed all that was required of him.
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I'm going to allow myself a chuckle every time someone versed in law expresses bewilderment when Republicans use their puppet. The leadership of the right in this country are not conservatives, they are fascists. The mask has been off for a while now. If the US hands them power they're going to do whatever they want.
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EDIT: https://twitter.com/steve\_vladeck/status/1490866416115142656?s=21
Missed that on my read. If either party could win on appeal, I guess we’re not doing “likelihood of success” for PIs anymore?
Isn't the burden of establishing a probable success on the merits on the party moving for the injunction? A 50/50% chance would seem to break in favor of denying the injunction.
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LOL, the STAY is the injunction.
"A stay is not a matter of right, and its issuance depends on the circumstances of a particular case. The first factor, a strong showing of a likelihood of success on the merits, requires more than a mere possibility that relief will be granted. Similarly, simply showing some possibility of irreparable injury fails to satisfy the second factor. See Winter v. Natural Resources Defense Council, Inc." Nken v. Holder, 556 U.S. 418 (2009)
I simply adore how conservative nutjobs on here are so committed to being wrong they cannot even get their story straight. Yes, a 50/50 chance does break in favor of denying the injunction, which is the opposite of what happened here. Thanks for agreeing with the rest of us that Kavanaugh is a hack.
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There may—or may not— be a basis for revising our VRA precedent in light of the modern districting technology that Alabama’s application highlights. But such a change can properly happen only after full briefing and argument—not based on the scanty review this Court gives matters on its shadow docket. The District Court here did everything right under the law ex- isting today.
Our institutions are dead we just don’t know it yet. Only one side is acting in good faith.
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They’re not dead. They’re working exactly as intended. For most of its history, the Supreme Court has been a reactionary institution. They were making good law for like 20 years in the mid-20th century. Everyone is so nostalgic for that time that we fail to realize that it was the exception, not the rule.
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I'm unaware of anyone acting in good faith
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Thank you, never too early for some both sides are bad commentary.
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Democrats literally don't have a majority in the Senate to allow it. There are 48 Democrats, 2 independents that usually caucus with them. 2 of the Democrats are institutionalists that are opposed to major changes. Will you stop trying to paint Democrats as bad or ineffective here? Come on.
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Both sides are bad. One is just so terrible that if you squint really hard the other looks good by comparison.
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if you squint really hard
Right, I could only that one side does not believe in science, is xenophobic, and engaged in domestic terrorism on Jan 6 by squinting, really hard.
/s
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The cons are basically invoking Purcell to stay an order for an election NINE MONTHS AWAY. Incredible.
I hope when they rule on the merits they finally get it over with and just say the VRA is unconstitutional. I'm tired of this pussy-footing crap where they're too chickenshit to be as openly racist as they are.
(And before anyone says 'it's not racist to oppose the VRA on federalism grounds,' if you believe enforcing amorphous definitions of federalism is more important than the right of minorities to vote, you're a fucking racist.)
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Boo fucking hoo. In NC we've experienced courts turning and overturning maps just a week or so before primaries more than a few times and everything is just fine. Primaries can be delayed, as we've done in NC before. The Court's stay makes this far more of an issue by creating uncertainty as to when the new maps, if any, would have to be drawn.
You fucking reactionary goons will use any bullshit argument to prevent black people from voting. Just admit you're a fucking racist so we can argue on agreed terms.
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Ohio threw out the maps and told the GOP they had ten days to fix it.
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Yes, the idea that drawing new maps in a short amount of time is an impossibility is ridiculous. The NC court of appeals struck down state leg maps in advance of the 2020 general election and the legislature drew new ones in like, 2 weeks.
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If your grounds for disagreement are 'having a primary election go undelayed by a couple weeks is more important than ensuring black people's right to vote is protected,' yes you're a racist.
You disgusting people will hide your evil intentions behind the thinnest veneer of respectability and the second someone chips away at it you cry foul. Fucking snowflakes. Callling someone racist is worse than actual racism to you people. Pathetic.
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Justice Kagan addresses this point, as needed to counter Kavanaugh's feigned perturbation over elections starting NEXT MONTH! (as Kavanaugh repeatedly describes it in a technically-true-but-intentionally-massaged manner). First, March 30 is nearly two full months away at this point, and for additional context, the legislature enacted the current districting plan at issue in this case in less than a week. Second, March 30 is merely the first day of the absentee voting period, which runs all the way until the day before the primary election. And third, the actual primary election day is not until May 24.
The districting plan at issue could easily be temporarily stayed with minimal disruption at this point -- at worst, perhaps, a slight adjustment to the start of the absentee voting period that would still leave voters with months to submit an absentee vote, prejudicing no one. The fact that Kavanaugh and the majority can only justify the application of Purcell by relying on embellishments and obfuscating the election timeline (or at least presenting it as obliquely as possible) tells you everything you need to know.
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the legislature enacted the current districting plan at issue in this case in less than a week. Second, March 30 is merely the first day of the absentee voting period, which runs all the way until the day before the primary election. And third, the actual primary election day is not until May 24.
Let me preface that I despise what Alabama is doing but I think you're idea is missing something important. The maps can be made in a week but after the maps are made they have to be propagated to County Clerks, not always the sharpest of people, and their departments, made up of people who aren't as swift as the Clerk. Those county clerk departments have to take those maps and identify each voter in the new district. Then they have to assign a primary ballots to each legislative district and then actually have the ballots printed and mailed so that people receive their sample ballot at least 1 to 2 weeks ahead of the election, I don't know Alabama law on this.
Also March 30 may not be the date we need to hit, the date we may need to work with is Friday, March 11, 2022, this is the date the Secretary of State must certify names of opposed candidates for federal and state offices to probate judge no later than 74 days prior to the primary.
The printing and mailing will likely take at least 3 weeks and you want the sample ballots to arrive 1 to 2 weeks ahead of the election so you're talking at least 5 weeks if you don't think anything will get screwed up.
IANAL but if SCOTUS couldn't say that Alabama would likely win on the merits then they shouldn't have stayed the lower court's ruling but there is not a lot of time for SCOTUS to hear a case that the parties can prep for and have a a new map certified in time. I'm sure the lack of time was considered a feature by the Republicans when they set out to do this.
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And? Please cite the VRA provision that allows for racial gerrymandering as long as it’s done slow enough for courts to run afoul of Purcell when they have to intervene.
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Please cite the VRA provision that allows for racial gerrymandering as
long as it’s done slow enough for courts to run afoul of Purcell when
they have to intervene.
Purcell was 2006, VRA was 1965. You're asking for an anachronism.
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You’re just making my point now by pointing out the insanity of this decision. Purcell has apparently allowed “one free racism” after redistributing if states are too slow to finalize racist maps. As there is no such allowance in the VRA, the decision is both cowardly and clearly incorrect.
Very telling about the court’s defenders that they have zero qualms about the new “get out of VRA free” card the court pulled out of its ass.
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Can someone give me an ELI5?
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The Voting Rights Act was passed in 1965 to ensure that Blacks would be able to vote, particularly in the southern states that used all sorts of rules and exceptions to keep them away from the ballot box. There are a number of provisions, but the VRA's effectiveness has been eroded by a series of Supreme Court rulings, most recently last year. This case concerns the part of the Act dealing with racial gerrymandering. Basically, it prohibits a state from diluting the voting power of a racial group by putting them in multiple congressional districts. For example, if there's a cohesive geographic area with a large Black population, the state can't break it into three separate districts and ensure Black voters will be in the minority in all three districts. It's one of the big reasons why ultra-conservative southern states like Mississippi will always have at least one Black representative.
The plaintiffs in this case claim that the Alabama legislature violated this part of the VRA when it approved a redistricting map earlier this year. The fear is that this Supreme Court, aided by its own recent decisions, will find for Alabama and allow other states to get away with racial gerrymandering.
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and allow other states to get away with racial gerrymandering.
One-third of Louisiana's population is black. Louisiana has 6 congressional districts.
How many districts should be majority black?
If your answer is one, then you might be a Republican in the Louisiana Legislature.
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I am not super familiar with Louisiana but is its population segregated enough that there are two districts worth of area with a majority black population?
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Baton Rouge and New Orleans are 2 separate cities with massive black populations.
The distance between the 2 cities is about 80 miles.
Louisiana Republicans drew a congressional district that connects the 2 cities and then creating a second district that splits New Orleans in half and has a random block like 30 miles south of the city that isn't connected to anything where only white fishermen live.
https://en.wikipedia.org/wiki/Louisiana%27s_congressional_districts
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Easily.
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I think it's a bit more complicated than that.
If lines were perfectly drawn (probably impossible) to reflect the overarching demographics of the state in each district, then technically zero districts would be majority black, as all districts would be 1/3 black.
Do we draw districts to allow each particular ethnic group, or party, or economic demographic, to completely dominate districts in ratio to their populations within the state? That seems like an impossible task. At some point, someone is getting underrepresented.
I would agree that a particularly large minority population, in this case black people in Louisiana, should be guaranteed some level of representation, but that itself becomes it's own form of gerrymandering. It's a tricky subject.
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It is an explicit racial gerrymander. Republicans bitch about that all the time. It's true that not all gerrymandering is bad. But there are clear policy differences between racial and political gerrymanders.
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That's part of why I would argue that districting should only exist for local municipal administration, and all statewide representatives and offices should be voted on, you know, statewide, without districting consideration.
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It depends on whether you value descriptive representation (your rep looks like you) or substantive representation (your rep serves the interest of their constituents). I would argue that substantive representation is much more important.
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If your answer is one, then you might be a Republican in the Louisiana Legislature.
I mean, they'd highly prefer zero, of course, but have to settle for one.
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And people say Republicans aren't willing to reach across the aisle and compromise....
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Is the answer zero? Seems like the answer would be zero
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Tysm! That explained it really well
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Alabama republicans drew / gerrymandered the new districts to give themselves a 6 - 1 advantage over democrats. (The old map was also 6 -1.) The lower courts said this was racist and placed an injunction against them using the maps. This was appealed to SCOTUS. SCOTUS has agreed to take the case, but that won’t happen for over a year. In the meantime they’ve lifted the injunction and will let the “racist” maps be used until they make their decision on the actual merits of the case. The only thing decided now, is that the new map can be used temporarily.
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to add to the history, after 2010 census redistricting, they got approval of the old map, 6-1, by the DOJ. I assume via the old VRA Sec 5 pre-clearance requirements. https://www.cnn.com/2011/11/21/us/alabama-redistricting/index.html
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There has also been an increase in the African American population in the state based on the new census. So the shift in demographics is partially driving the issue with the map despite it being previously approved.
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I thought SCOTUS was supposed to be fair, nonpartisan and balanced ? I guess I am wrong.
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Roberts joining the liberals in dissent.
Scrambling in an attempt to preserve some semblance of professionalism more like. And failing. Badly.
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Like closing the barn door after all the animals escape. It looks professional but only to those that don’t look to close.
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Anyone surprised? Anyone?
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Just to clarify, if this is finally dealt with after an election, if they do find the changes to be illegal, will it just be "aw shucks" or will there be some mechanism to challenge those results?
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Aw shucks unfortunately.
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Aw shucks. It's happened many times before. Courts won't get into overturning or ordering new elections after they've happened--at most they'll order new maps drawn for the next election (which this Court will never do).
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Does this mean they're likely to reinstate North Carolina's map (which the state Supreme Court threw out last week)?
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Unless some of Gorsuch's crazier positions on the Elections Clause in 2020 are adopted by the rest of the Court (unlikely), no. That was a state supreme court opinion using the state constitution, so there is no jurisdiction for scotus (unless, as mentioned, the Court agrees with Gorsuch's wild interpretation of the Elections Clause, which I think is unlikely).
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I’m sure the majority will find some contrived reason to get involved. I’m wondering if they’ll try something with NY’s new map, which benefits the Democrats.
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The State Supreme court likely made its ruling based on state law, so the US Supreme case won't apply.
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Ah yes, because this court is notorious for judicial restraint and not just completely pulling shit completely out their ass.
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I hope that's the case because Florida... wait. Florida's Supreme Court is just as fucked up as SCOTUS is. The Florida Fair Districting constitutional provisions are just as likely to be gutted as the VRA.
That said, 10 years ago Florida lawmakers sliced and diced the Central Florida Latinx population (which leans D unlike the S.Florida Cubans) to smithereens and though it took awhile it probably ended up costing John Mica his seat.
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Didn’t see that one coming
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SCOTUS has no balls.
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Why do the SC Republican judges hate blacks and democracy?
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and you expected what exactly???? Votes have consequences.
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Anyone else notice Kagan in her dissent quite strongly implying some things were said in chambers about the merits of the case which she wasn't pleased about? Like this:
That doesn't seem regular for the Court's opinions.
This isn't a court opinion. It's an order from the Shadow Docket. That's Kagan's point; SCOTUS is dismantling civil rights without hearing full arguments and without a full briefing, and without explaining itself.
Kagan is right to be furious.
The actual opinion will be a 5-4 decision and it will be atrocious. It will probably explicitly allow racial gerrymandering. My guess is something long the lines of racism is over society has changed dramatically since the VRA was enacted yada yada black President yada yada written or signed on by a black justice on the court etc etc and if black people feel this is racist they just need to vote to have legislators gerrymander in favor of black Americans.
What scares me most is I’m not even sure if my own comment is satire or serious and I wrote it.
If the court wasn't a clown show, they'd issue an opinion saying "the law says we have to overturn these maps, but we believe that law is outdated and call upon congress to bring it into the 21st century." You know, like they did in the opinion for Citizens United.
It's so obvious this SCOTUS is illegitimate and playing partisan games rather than acting as a neutral arbiter of the law.
It's Lochner 2.0
Alright... if you want SCOTUS to strike Section 2 of the VRA like they essentially did to Section 5, let's go. I have hard time believing that's what you really want.
I'm not a lawyer, but wasn't that already the case since all the cases over the Illinois 4th in the 1990's? Hastert v. State Bd. of Elections, James R. KING, v. State Bd. of Elections, etc.?
That's almost exactly what happened with the creation of the Illinois 4th, they wanted an explicitly Latino district so they made one, even though it took some crazy gerrymandering to get it.
I am a lawyer and that is not what was going on there. IL-04 is a VRA district made so Latinos in that area of Chicago can elect a candidate of their choice. This is a game conservatives like to play a lot (DeSantis in Florida with the Orlando and Jax VRA districts is a great example of this).
Once there are enough of a protected minority group in an area the VRA mandates they be able to elect a candidate of their choice (not necessarily the same race, see Steve Cohen in Memphis), but that as a voting bloc they are not stymied by a white minority.
I once had a colleague describe it as Goldilocks Racially Gerrymanders. You need to use race in redistricting just enough to comply with the VRA, but not so much that you deny protected classes their due representation.
It sounds confusing but at the end of the day there's reams of case law on what this means and about 5 expert witnesses that have purchased yachts with their fees for their depositions and expert reports in all these cases.
That's all a really long way of saying this stay is complete bullshit. Black people make up 27% of Alabama voters but can only elect a candidate of their choosing in one district out of seven. It's a clear racial gerrymander and is illegal under all our settled laws. The fact SCOTUS just ignores that is evidence they're about to eviscerate what's left of the VRA after Shelby.
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Its going to be 6 3 . Read Roberts dissent. He said he wants to change precedent as well but they should wait and not issue a stay
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I didn't even imagine it can be satire until you mentioned it. It might be 5-4 or 6-3, but otherwise you're pretty much on point.
the 14th explicitly forbids that. most likely is that the 14th in essence overrules the VRA, ie it's no longer a compelling interest that survives strict scrutiny. rick hasen broke it down really well here https://electionlawblog.org/?p=127399
we already have majority minority districts though? doesnt that mean racial gerrymandering is allowed?
Sounds like a whiny child who isn't getting their way.