The Supreme Court’s Conservatives Have One Consistent Rule: Black Votes Shouldn’t Count

from the jim-crow-alito dept

The Supreme Court’s conservatives have spent years systematically dismantling the Voting Rights Act, but the last seven months have been something else — a rapid-fire series of emergency docket rulings, procedural maneuvers, and carefully worded opinions that, taken together, make it effectively impossible to challenge racial gerrymandering. Not difficult. Impossible. And Justice Alito, in particular, seems almost gleeful in how mask-off he is in enabling the suppression of Black votes.

Yesterday’s per curiam ruling in Allen v. Milligan is the exclamation point on that project. None of the conservatives were willing to put their name on it. They didn’t need to. The result was never really in doubt — not after what they’d already done in Texas, Louisiana, and Alabama over the preceding months. This was just the moment it became undeniable that the rule is: if it disenfranchises Black voters, we’ll allow it, if it empowers Black voters, we’ll block it.

Here’s the trail.

1. In November last year a (Trump appointed!) judge threw out Texas’ gerrymandered brand new maps, by pointing out that they clearly violated the Voting Rights Act prohibition against race-based gerrymandering. As the judge pointed out, if Texas had done the gerrymandering for political reasons (to block Democrats from being elected), that would have been legal under a different recent (but still troublesome) Supreme Court ruling. But the incompetent Trump DOJ had pressured Texas explicitly over the racial makeup of its maps, which was seen as the clear racial reason for doing the gerrymandering.
2. In December last year, the Supreme Court put the racist gerrymandered maps back into play, with a ruling by Justice Samuel Alito saying that, even though the lower court found those new maps (which had only been created months earlier and used in no elections), “Texas needs certainty on which map will govern the 2026 midterm elections.” Given that (1) the primaries were still many months away and the ramification of rejecting these new maps was simply… going back to the same map that Texas had used during the last Congressional election, none of this made any sense.
3. In April, the Supreme Court came down with its decision in Louisiana v. Callais, in which the conservatives on the court said that to show gerrymandering was done for racial reasons (which the Voting Rights Act makes illegal), plaintiffs can’t just show evidence of the impact — they have to produce additional evidence of actual racist intent behind the redistricting. In this ruling, Justice Alito said that the ruling had no bearing and did not overturn previous rulings, either about the Voting Rights Act or in an earlier case the Supreme Court had heard, in which it found that Alabama’s new voting maps gerrymandered to deprive Black people of representation in Congress.
4. In May, Justice Alito (again, that guy) took the surprising step of rushing to certify the Callais ruling (something that is very, very rare) to assist the state of Louisiana in redrawing its maps for the election that was happening days away. Again, there is no way to square Alito’s step there with his statement about “certainty” in December unless the only “certainty” is “Black people’s votes shouldn’t count.”
5. Then, just a few weeks ago, the Supreme Court weighed in on an updated challenge to the Alabama maps — a follow-up to the earlier case where the Court itself had found Alabama violated the law. Despite lower courts finding that Alabama’s latest maps were still illegally race-based, the Supreme Court said that under Callais, those maps could go into effect anyway — eight days before the election. So: in Texas, Alito said you couldn’t remove racist maps four months before an election because people needed “certainty.” In Alabama, Alito says you can install more racist maps eight days before an election. The only certainty Alito seems interested in protecting is the certainty that Black voters get suppressed.
6. The election occurred 8 days later, but the State of Alabama, buoyed by the Supreme Court’s “racism is okay now!” attitude, simply discarded the votes in four districts, while keeping them in other districts, and said “we’re going to redo those primaries with our more racist maps later in the summer.”
7. Last week, a three judge panel (two of whom were appointed by Donald Trump) at the district court, taking instruction from all of those recent Supreme Court rulings, still found that Alabama’s new maps were clearly violating the Voting Rights Act, showing in another very detailed ruling that there was tremendous evidence that the maps were created specifically for racial reasons to suppress the impact of the Black vote. They were directly following the rulings in both Callais and Allen, where Sam Alito and friends said you have to be able to show actual racist intent to violate the VRA. The judges (yes, including a majority appointed by Trump) said “okay, yes, here we have overwhelming evidence of racist intent.”
8. Those three judges laid out pages upon pages showing that the most fair, the most constitutional, and the most reasonable conclusion — under the very Supreme Court rulings Alito had authored — was to throw out this map, exactly as the Supreme Court itself had done a few years earlier.

So that brings us to yesterday. Alabama had rushed to the Supreme Court’s emergency docket, because of course they did. And the conservatives on the court did what they were expected to do: in a per curiam ruling that none of the conservatives were willing to put their name on, they shoved the (already deemed racist by multiple lower court rulings) Alabama map back into effect while the election was already underway.

The ruling claims this is necessary after Callais — that the lower court didn’t apply the new standard correctly. But that’s a misreading of what the lower court actually did (and also the Court’s own ruling in Callais!). The district court found overwhelming evidence of racist intent. That’s exactly what Callais demanded. The Supreme Court’s stated reason for overriding that? The lower court “did not heed the presumption of legislative good faith.”

Even more ridiculous, the ruling claims that the district court’s ruling would have upset that “certainty” so close to an election again:

We have repeatedly cautioned that lower federal courts should not “alter the election rules on the eve of an election.”

I mean come the fuck on. These same six twerps literally “altered the election rules” in neighboring Louisiana a month ago and altered Alabama’s election rules just a few weeks ago. This new map is what “alters the election rules on the eve of an election.”

The sheer racist chutzpah it takes to scold a lower court for “changing the map at the last minute” while actually changing the maps with the very same ruling is something else.

There is, yet again, a dissent written by Justice Sotomayor (and joined by Justices Kagan and Jackson) laying out the ridiculousness of all of this, including calling out the conservatives past claims of trying to avoid “chaos and confusion” while guaranteeing that these recent elections are nothing but chaos and confusion:

Before the Court are two paths. Down one lies an orderly election, held under a tried-and-tested congressional map that protects Black Alabamians’ right to vote and with which all voters, elections officials, and candidates alike are familiar. Down the other lies a chaotic election, held under a never-before-used congressional map that intentionally discriminates against Black Alabamians, that Alabama adopted in unashamed defiance of a prior court order directly affirmed by this Court, and that will require officials to change the voter registrations of hundreds of thousands of voters in just days at best, a task that Alabama previously represented would take months.

Sotomayor points out that the last time this case came before the court — when the majority agreed the Alabama maps were racist — Alito and Kavanaugh whined that changing the maps with months to spare would cause “chaos and confusion.”

She points out that what is happening now, because of the same rulings endorsed by Alito and Kavanaugh, we are now seeing actual chaos and confusion, including already made votes being thrown out:

After this Court’s order, Alabama announced that it intended to use the 2023 Redistricting Plan for the upcoming election and took the unusual step of splitting its congressional primary. In the three congressional districts unaffected by the change in congressional map, the May 19 primary election went ahead as scheduled. In the other four districts, voters still cast their ballots. Their votes for Congress, however, did not count. Instead, Alabama’s Legislature passed a law permitting the Governor to call a special primary election in the four congressional districts whose lines changed as a result of this Court’s order, and the Governor set that election for August 11.

Sotomayor repeats how multiple district court rulings and the Supreme Court (with the same makeup) had already found that the Alabama maps violated the law. And she points out that, unlike the Supreme Court the district court followed the earlier rulings in looking at the actual evidence:

The District Court’s account of the evidence here is more than plausible. The record is bereft of evidence suggesting that Alabama took seriously this Court’s finding of discriminatory vote dilution in Allen. Speaker of the Alabama House of Representatives Nathaniel Ledbetter put it bluntly: “‘If you think about where we were, the Supreme Court ruling [in Allen] was five to four. So there’s just one judge that needed to see something different.’” Singleton, 782 F. Supp. 3d, at 1348. That admission, the District Court observed, suggests “that Speaker Ledbetter was not focused on trying to remedy likely vote dilution” when the Alabama Legislature passed the 2023 Redistricting Plan.

As she notes, under the current Alito-doctrine, there is simply no way to ever invalidate a gerrymandered map:

The record is crystal clear. Even if Alabama may have unintentionally drawn the first racially discriminatory map, when it later adopted redistricting criteria that made it mathematically impossible to remedy racial discrimination, the District Court drew the obvious (and certainly not implausible) inference that Alabama intended to discriminate. If the District Court clearly erred by doing so, then there is no realistic case in which the presumption of legislative good faith can ever be rebutted.

Then she goes back to the point she made in her dissent on the last ruling. Callais is entirely about the Voting Rights Act. But the maps in Alabama didn’t just violate the VRA, they also were found to violate the Fourteenth Amendment. And while the Supreme Court can rewrite the VRA, it can’t ignore the Constitution. Yet it did. And it did so again in this ruling, pretending that Callais also covers the Fourteenth Amendment.

It is hard to see how the District Court’s finding of discriminatory intent under the Fourteenth Amendment could have departed from an opinion that purported to say nothing about how to find discriminatory intent under the Fourteenth Amendment. The Court’s apparently oblivious insistence to the contrary today cannot be squared with what Callais said on its face just over one month ago.

And then there’s the chaos argument, which is where Alito and Kavanaugh’s earlier hand-wringing gets turned directly against them.

As the District Court explained, the path of least change in Alabama is keeping the District Court’s remedial plan in place. According to Alabama Director of Elections Jeff Elrod, all voters in Alabama are currently assigned in countylevel voter rolls to congressional districts based on the remedial map that the District Court previously ordered and that the State used for the 2024 election cycle. 2 App. 135. To run an election using the remedial map, then, the State need not make any changes to its voter rolls or change the status quo.

To switch to the 2023 Redistricting Plan now, however, county elections officials will have to reassign hundreds of thousands of voters across the State to new congressional districts.

Once again, the only actual consistency from the conservatives on the court seems to be “you cannot upset maps if they are racist against Black people” but “you can absolutely shake up maps at the last second, throwing out votes, if the new maps will be racist against Black people.” The only clear “consistency” is that it is only okay to disenfranchise Black voters.

And there will be massive chaos:

Elrod testified below that county elections officials would have to reassign those 600,000 voters manually. “The system,” he explained, “is not automatic” and “requires manual input” from elections officials who must “physically manually interface with the system.” Id., at 146. Reassigning voters in precincts split across two districts is particularly complicated, he continued, as it “cannot be done with a simple click” and instead requires officials to check street-level data to determine how to assign individual voters. Id., at 156–157. Worse yet, Elrod warned that reassigning voters requires using complicated computer software that officials must be trained to use, as “most of the counties’ registrars are not tech savvy” and “registrars are the only ones who can make the changes . . . to a voter’s record.” Id., at 147– 148. This process also requires many prechecks and backend quality control steps, all of which add to its time-intensive nature.

[….]

Here, county officials do not have four months. When Alabama filed these applications on May 27, they had just seven days. Elrod explained that voter rolls were locked throughout the State following the State’s May 19 primary election, meaning that county officials could not reassign any voters to their new congressional districts under the 2023 Redistricting Plan for the August 11 special primary election. ECF Doc. 530–1, p. 17. The rolls were unlocked on May 27, but they are set to lock again today, June 2, ahead of Alabama’s primary runoff election on June 16. As a result, county officials in the three most heavily impacted counties in Alabama had at best just seven days to reassign 600,000 voters by hand. The two smaller counties, which are together responsible for reassigning 100,000 voters, each have just three elections officials who can make these changes. 2 App. 122. Mistakes will inevitably occur, as overworked elections officials sprint around the clock to make all the necessary changes. Even then, the officials may fall short. As far as Elrod is aware, no county in Alabama that was split under a redistricting plan has ever managed to complete voter reassignment in just seven days.

That seems bad. That seems like the kind of inconsistency, chaos, and confusion that the conservatives on the Supreme Court insisted could not be allowed (when it would mean getting rid of a racist map). Weird that here they are not only fine with it, they are encouraging of the chaos.

In fact, Sotomayor points out that Alabama officials have changed their position on how much chaos would be caused depending on which result helped them more:

Alabama has taken wildly inconsistent positions on how much time it needs to implement a new redistricting plan throughout these cases, which suggests it is attempting to game this Court’s emergency docket through shifting positions on the equities. As noted above, Alabama previously sang a very different tune. In January 2022, it asked the District Court to stay its initial preliminary injunction in these cases. See ECF Doc. 110. In its motion, the State complained that changing its congressional districts four months before Alabama’s primary election that year “thr[ew] the [2022] election into chaos” and left “almost no time for maps to be redrawn, hundreds of thousands of voters to be reassigned to new districts, and thousands of new signatures to be obtained by candidates and political organizations seeking ballot access.” Id., at 20. Alabama continued: “To pull the rug out from . . . candidates and their voters in the run-up to an election requires extraordinary justification,” for “‘elections are complex to administer, and the public interest is not served by a chaotic, last-minute reordering of districts.’” Id., at 21 (alterations omitted). The State made similar arguments to this Court when it successfully sought a stay following the District Court’s denial. See Merrill Application 38 (citing “the last-minute reassignment of hundreds of thousands of voters to new districts” as imposing significant “harms not only [on] the State,” but also on “voters and candidates”).

If all the above was true in 2022, then it is also true in 2026. Alabama, however, no longer seems to think so. What was previously impossible to achieve in four months is suddenly possible to achieve in less than one week, as concerns about the administrative burdens associated with “the last-minute reassignment of hundreds of thousands of voters to new districts,” ibid., have apparently melted away. A State that once decried pulling the rug out from under voters, elections officials, and candidates now seems determined to do just that. The Court should not reward such gamesmanship, especially when it accepted Alabama’s arguments in granting Alabama a stay in 2022.

Again, Alito and Kavanaugh explicitly called out the supposed “chaos and confusion” that would be caused by adjusting maps with four months notice in 2022. Yet here, they seem to see zero issue with it happening in mere days.

Once again, there is no way to square all of this that does not come down to the judges who voted for this simply supporting blatant disenfranchisement of Black voters.

Filed Under: alabama, callais, gerrymandering, louisiana, purchell rule, racism, samuel alito, sonia sotomayor, texas, voting rights