Parties seeking to challenge a new law have to make a choice between filing a case in federal court (assuming that they have a federal constitutional claim) and filing in state court. Unless you have a favorable state Supreme Court, the usual tendency is to file in federal court. However, it is becoming very clear that, if you are challenging an illegal redistricting plan, you really have to file in state court as the U.S. Supreme Court will not be give any assistance to plaintiffs.
This week, the U.S. Supreme Court had what should have been a no-brainer. When faced with a challenge to the Alabama district lines under Section 2 of the Voting Rights Act, the three-judge panel issued a lengthy order which included detailed analysis of the evidence and tracked the governing precedent under Section 2. Under the existing law (and the plain language of Section 2), the Alabama maps were and are illegal. Under the legal standards governing a stay (which takes into account the merits and the interests of the parties), there was no basis for a stay. The Supreme Court should have denied the stay and summarily affirmed the judgment.
But that’s not what the Supreme Court did, By a 5-4 vote, the Supreme Court issued the stay and put the case on the argument docket for the fall. Because there is no requirement for opinions on stays, we only know the reasoning of some of the justices. And what we do know gives a strong hint that the Voting Rights Act is effectively dead.
Three of the justices — Justice Gorsuch, Justice Thomas, and Justice Barrett — did not issue an opinion. The other two justices in the majority — Justice Kavanaugh and Justice Alito — joined an opinion written by Justice Kavanaugh.
The Kavanaugh opinion was a pushback against criticism in the dissent (and in the media) about the use of emergency orders to change the law. It asserted that, since the Supreme Court put the case on the argument docket, this decision does not represent a change in the law. While that technically may be true, the very acceptance of the case means that the majority is considering a change in the law (and anybody who thinks that this majority will not change the law has not been looking at the recent decisions under the Voting Rights Act). It also asserted that this stay was appropriate under the Purcell doctrine.
The reference to the Purcell doctrine is also a big change in the law. Purcell was an election case (again an emergency order) in which the Supreme Court stated that courts should generally not issue orders that changed election laws on the eve of the election. In this case, however, we are on the eve of filing, not the eve of the election. And the new law that is being stayed has never actually gone into effect. Regardless of whether the lines adopted on November 4 and immediately challenged in court take effect for this election cycle, either option is a change in the rules for the election. The two dissenting opinions — one by Chief Justice Roberts and one by Justice Kagan (joined by Justice Breyer and Justice Sotomayor) — are right on this issue. Given that there is no question that the decision below is correct under current law, the Supreme Court should not be granting a stay of the lower court ruling.
And on the merits, the Supreme Court has usually followed the principle that it should not revisit prior decisions. This principle is somewhat loosely followed for constitutional decisions because it is hard to amend the Constitution. But on issues involving the interpretation of statutes, the Supreme Court has usually been reluctant to alter such decisions because on the theory that, if Congress thought that the Supreme Court got it wrong, Congress has the power to amend the statute in response. In the civil rights arena, Congress has often responded to wrong decisions by passing an amended statute. The governing case here is from 1986. Since then, Congress has made changes to other civil rights law as well as periodically passing other voting rights laws. Thus, under usual practice, the Supreme Court would not reconsider the test for violations of Section 2. And regardless of what the test is, it is clear from the evidence considered by the trial court that the lines in question do diminish the ability of a cognizable racial group from having an equal opportunity to elect the candidates of its choosing. But, looking at Chief Justice Roberts opinion, he along with the rest of the not conservative majority intends to toss out the current precedent contrary to the supposed principles of textualism and judicial restraint.
In short, this case will be the latest in a long line of cases from the Roberts Court demonstrating that people whose voting rights are violated should not look to the federal courts to protect them regardless of what federal statutes and the U.S. Constitution say. Right now, all of the successes on protecting voting rights are coming from state courts applying state laws.
