Surprise! The Supreme Court Votes in Favor of Democracy (Part 1)
In two major decisions handed down during its June term, the U.S. Supreme Court supported voting rights for Black Americans and rejected a radical legal theory that could have wreaked havoc with the 2024 Presidential elections.
The first decision, Allen v. Milligan, came as a pleasant surprise, given this Court’s previous hostility to voting rights. The second ruling, in Harper v. Moore, was a relief; American democracy dodged a bullet. Under the so-called “independent state legislature theory”, state lawmakers would have absolute authority to dictate how elections are conducted, without any oversight or review by state courts.
Chief Justice John Roberts, who wrote both opinions, is apparently exercising more control over the Court. Roberts seems to have forged alliances that have diminished the power of the three ultra-right Justices—Clarence Thomas, Samuel Alito, and Neil Gorsuch--at least on some voting rights issues. Roberts may be trying to protect the Court’s legitimacy, which is on shaky ground after it abruptly overturned long-standing precedents on abortion rights and gun controls last year and, just last month, on affirmative action.
Still, the news is not all good. The Court split 5-4 on the Allen decision, so it was a close call. The three far-right Justices dissented in the Harper case, which is very disturbing.
In this article we will examine Allen and its ramifications. We will discuss Harper and the dangers of the independent state legislature theory in a subsequent article.
Protecting Black Voters in Alabama
In Allen v. Milligan, a group of Black voters challenged a redistricting plan that the Republican-dominated legislature in Alabama drew up after the 2020 census. Blacks represented 26% of Alabama voters. However, the plan included only one Black-majority district, out of seven. Since Black candidates won only in the majority-Black district, African American voters effectively could elect only 14% of the state’s Congressional representatives.
The plaintiffs argued that the plan violated Section 2 of the Voting Rights Act of 1965 (“VRA”). They sought to compel Alabama to create another majority-Black district, so that African Americans would have greater representation in Congress.
The district court agreed with the plaintiffs, noting that Alabama had a long history of racial discrimination against Black voters. The district court found that very few white voters supported Black candidates, so as a practical matter, Black candidates never won elections in districts dominated by white voters. Alabama appealed the decision up to the Supreme Court, arguing that its plan was “race neutral” and therefore did not violate the VRA.
Chief Justice John Roberts and Justice Clarence Thomas/Getty Images
Roberts Upholds the Voting Rights Act
In his opinion, Justice Roberts ordered Alabama to redraw its electoral map by adding a second majority-Black district. Roberts emphasized that the purpose of the Voting Rights Act was to prevent states from creating obstacles that would prevent citizens from having an equal opportunity to participate in the political process:
“A district is not equally open, in other words, when minority voters face—unlike their majority peers—bloc voting along racial lines, arising against the backdrop of substantial racial discrimination within the State, that renders a minority vote unequal to a vote by a nonminority voter. ”
Roberts also stressed that the Court was following a clear precedent, Thornburg v. Gingles, in its interpretation of the VRA, while Alabama was proposing a novel approach. Roberts noted that the Court was abiding by the traditional principle of stare decisis, i.e., respecting precedents.
Justice Brett Kavanaugh agreed, as did the three liberal Justices, Ketanji Brown Jackson, Elena Kagan, and Sonia Sotomayor. However, Justice Amy Coney Barrett joined in Justice Thomas’ dissent, as did Alito and Gorsuch
Thomas’ Bitter Dissent
In a blistering dissent, Thomas claimed that the majority was in essence ordering Alabama to ensure that one racial group, Black voters, be awarded proportional representation equal to their percentage of the electorate. As Thomas pointed out, Congress had explicitly prohibited using Section 2 of the VRA to mandate racially based proportional representation.
Roberts carefully threaded the needle on this issue. The Chief Justice argued that it was eminently feasible to create a new electoral map, following the usual rules on fair redistricting, that would include a second majority-Black district. Roberts noted Alabama’s long history of racial discrimination and the near impossibility of Black candidates winning in mostly white districts. He emphatically denied that the Court was imposing a rule of proportional representation.
In short, Roberts and the majority reached a common-sense solution that would give Black Alabamans a better, and fair, chance of being adequately represented in Congress. Thomas and the other dissenters put forth a “cramped view” of the VRA, in Roberts’ words. Furthermore, the dissenters seemed prepared to accept Alabama’s radical reinterpretation of the VRA, rather than use the law to protect African Americans’ voting rights from being diluted.
Powerful Knock-on Effects
The ramifications of the Allen decision on other states could be significant. Soon after it issued that ruling, the Court rejected Louisiana’s redistricting plans on similar grounds (via an unsigned order rather than an opinion.) African Americans constitute about 30% of voters in Louisiana, but after the 2020 census, the legislature created only one majority-Black district….out of six. So effectively Black voters could elect only 17% of Louisiana’s Congressional delegation. As in Allen, the gerrymandering basically diluted African Americans’ voting power by 50%.
The Allen decision could also affect Georgia’s electoral maps, according to some experts. Furthermore, since voters in majority-Black districts are predominantly Democrats, the Democratic Party might pick up some seats in the 2024 election because of the newly drawn districts.
Some Curious Aspects
The Allen opinion was a surprise in many ways.
The Roberts Court had severely weakened the VRA in two seminal decisions. In Shelby County v. Holder (2013), the Court gutted Section 5 of the VRA, which required states with a history of discriminating against voters to pre-clear any changes in voting laws, rules, or maps with the Department of Justice. In Brnovich v. Democratic National Committee (2021), the Court significantly eroded Section 2 of the VRA, which enables minority citizens to challenge state laws that affect their voting rights.
In Shelby, the Court airily declared that racial discrimination in voting had ceased to be a problem in the 15 states that were subject to Section 5, which included Alabama and Louisiana. And the Roberts Court has not previously shown much deference to precedent. Yet the Allen decision referred to Alabama’s history of racism and the need to respect prior decisions.
But we are not complaining….
The Wall Street Democrat