Supreme Court To Voting Rights Act: AND STAY DEAD!
Photo by James Steakley, Creative Commons Attribution-Share Alike 3.0 Unported license.

Yesterday, the US Supreme Court, which loves "state's rights" just as long as you're attacking women's bodily autonomy, trans people, or people of color, decided to jump into Wisconsin's redistricting war. Because why not?

And, of course, this Court is never just going to fuck things up in the normal Republican-evil way of the past. No, they are in the midst of an all-out attack on voting rights — especially for Black and brown Americans. (Full disclosure: In my other life, I'm the Policy Director for Wisconsin Voices and have been working on redistricting and ensuring Black and Brown voices are represented in our state's maps. This is not my first rodeo.)

When this Court goes for it, they really go for it. And so, the Court didn't just issue a stay or decide to hear Wisconsin Legislature v. Wisconsin Elections Commission; in an unsigned opinion, it summarily reversed the Wisconsin Supreme Court's ruling on the state's electoral maps without any argument or briefing on the merits. And in that unsigned opinion, they made it pretty clear that Section 2 of the Voting Rights Act is next on the chopping block.

Here's the background

Since before the 2020 Census results were even released, we knew redistricting in Wisconsin was going to be a shitshow and that a court was going to end up drawing our maps. The Wisconsin Constitution requires that the legislature and the governor agree on electoral maps, and we have a batshit insane legislature hell-bent on destroying our democracy as well as a reasonable governor in Tony Evers. When the legislature and the governor can't agree, the issue goes to the courts.

In the past, the Seventh Circuit has drawn Wisconsin's maps when there was no agreement, but this year our state supreme court decided to step in. The majority-conservative Wisconsin Supreme Court ruled that it would choose the maps that presented the least change from our uber-gerrymandered 2011 maps. And earlier this month, the court did just that, finding that Governor Evers's maps presented the least change from the 2011 maps and also complied with the Voting Rights Act by creating a new majority-Black district in Milwaukee because of the increase of Black voters in the area.

Republicans appealed the state supreme court decision to the US Supreme Court, asking the Court to declare that ensuring compliance with the Voting Rights Act was an illegal racial gerrymander. And, because there's nothing Republicans love more than taking voting power away from Black people, the Supreme Court complied.

Let's talk law

When race can be considered in redistricting is a very normal legal doctrine — by which I mean it's one full of rules and exceptions and "well, it depends" answers to what sound like simple questions.

The general rule is that the Fourteenth Amendment's Equal Protection Clause prohibits making race a primary consideration when drawing political maps. To use race as a predominant factor in map-drawing, you have to pass the strict scrutiny test: You have to show the maps are (1) narrowly tailored to further a (2) compelling state interest.

Section 2 of the Voting Rights Act prohibits voting practices that discriminate on the basis of race. This includes a ban on diluting minority vote by doing things things like packing minority voters into a small number of districts or cracking minority voters across several districts. Since 1965, the Supreme Court and lower courts have considered compliance with the Voting Rights Act to be a compelling government interest.

After the US Supreme Court decimated Section 5 of the Voting Rights Act in Shelby County v. Holder (aka the Plessy v. Ferguson of our time), Section 2 became the most important federal tool for challenging racist election practices. But don't you worry, racists who hate it when Black and brown people vote, because our esteemed Supreme Court justices are working to destroy Section 2, too.

Last summer, the Court weakened Section 2 by ruling in Brnovich v. DNC that it was totally fine for Arizona to enact racist voting laws that target racial minorities, as long as those laws might also disenfranchise some poor white people. And yesterday, the Court showed us once again just how excited it is to do away with these so-called "voting rights" once and for all.

Let's talk Milwaukee

So here's the thing: I actually think the Democratic maps the Wisconsin Supreme Court approved were probably illegal ... just for the opposite reason.

During the five months the Wisconsin Supreme Court spent on the redistricting litigation, all parties pretty much agreed Section 2 of the Voting Rights Act applies to Milwaukee. Per long-standing SCOTUS precedent (Gingles v. Thornburg), Section 2 applies when a minority population is "sufficiently large and geographically compact to constitute a majority in a single-member district," is "politically cohesive," and the "majority votes sufficiently as a bloc to enable it ... usually to defeat the minority's preferred candidate."

Milwaukee ticks all of those boxes. And I agree with Governor Evers that Section 2 requires seven majority-Black districts in Milwaukee. The problem isn't the idea of an additional majority-Black district, but ensuring any Section 2 districts actually create opportunity for minority voters.

As Senator Lena Taylor, one of just three Black Wisconsin state senators, argued to SCOTUS, the issue with the maps wasn't carving out seven majority-Black districts — it was creating "majority-Black districts" that didn't have enough Black people to comply with the Voting Rights Act. (The Republican maps would have reduced the number of majority-Black districts from six to five, despite a growth in Milwaukee's Black voting age population and a corresponding drop in Milwaukee's white voting age population, but that's an issue for another court and another day.)

But this, of course, is not the Supreme Court's problem with our maps. Rather, the Court stepped in here to try to ensure the Wisconsin Supreme Court takes even more power from Black voters if possible, Voting Rights Act be damned.

For most of the redistricting litigation, it was essentially undisputed that Section 2 of the Voting Rights Act applied to Milwaukee. Even Wisconsin's 2011 maps, often declared the most gerrymandered in the country, created six majority-Black state Assembly districts in Milwaukee County. But now, the US Supreme Court is saying that the analysis done by the Wisconsin Supreme Court wasn't enough to justify the creation of seven majority-Black districts.

One of the scariest parts of all of this is that Governor Evers never argued that his maps were primarily drawn to create majority-minority districts. Historically, the rule has always been that the Equal Protection Clause prohibits using race as the predominant factor in map-drawing. The maps that were submitted weren't drawn specifically with race in mind — they were created to follow the Wisconsin Supreme Court's guidance of creating the least change from the 2011 maps. They also created seven majority-Black districts in order to comply with the Voting Rights Act.

The posture of this case is different from normal Voting Rights Act cases. Usually, when a court is considering a Section 2 issue, it is in a Voting Rights Act case filed in federal court — and the court creates a large record analyzing maps, legislative history, historic voting patterns, and the local history of minority disenfranchisement. That gives the courts the ability to consider all of the relevant facts and do a full analysis.

That just isn't going to be possible in certain cases where courts are acting as map drawers. The Wisconsin Supreme Court was creating the maps, not reviewing them for Section 2 compliance. The governor submitted maps to the court specifically to follow the court's "least change" measure. The governor also considered compliance with the Voting Rights Act when drawing his maps.

This is what should happen! It has been the law for decades that compliance with the Voting Rights Act is a valid reason to take race into consideration when drawing maps. Requiring states to completely ignore Section 2 compliance when drawing maps will, at the very best, result in justice delayed. Minority voters will be required to wait until illegal maps are drawn and then litigate the issue, likely for years, before any corrective measure can be taken. But that is essentially what SCOTUS said must happen when it wrote:

The question that our VRA precedents ask and the court failed to answer is whether a race-neutral alternative that did not add a seventh majority-black district would deny black voters equal political opportunity. Answering that question requires an "intensely local appraisal" of the challenged district. When the Wisconsin Supreme Court endeavored to undertake a full strict-scrutiny analysis, it did not do so properly under our precedents, and its judgment cannot stand.

The rule in Section 2 cases has never been that the court must consider race-neutral alternatives. And if this is applied in all Section 2 cases, that part of the Voting Rights Act is, at least in practice, probably going the way of Section 5 à la Shelby County.

The Court's suggestion to the Wisconsin Supreme Court is that "the court is free to take additional evidence if it prefers to reconsider the Governor’s maps rather than choose from among the other submissions. Any new analysis, however, must comply with our equal protection jurisprudence."

No mention of the Voting Rights Act.

This is fine

While the impending decimation of the rest of the Voting Rights Act is the scariest thing about this opinion, it's far from the only fucked up part. The Court issued a summary reversal without full briefing — parties had only filed briefing on the legislature's request to stay the state court ruling and had not even briefed the merits. Summary reversal is rare and generally requires six justices to sign-off, so even though the opinion is unsigned (cowards), we can be reasonably sure John Roberts, who hates Black voting rights as much as anyone, sided with the five fullblown fascists. Justices Sonia Sotomayor and Elena Kagan were the only noted dissents.

This case is also another example of the Supreme Court using the "shadow docket" to make important rulings. Most major Supreme Court rulings come after months of briefing, oral arguments, and consideration by the Court. But in recent years, the Roberts Court has increasingly enjoyed issuing major rulings on the merits of cases without any of this. Precedents intended to last for decades if not longer are created, as in this case, after just a couple of weeks and no full picture of the issue at hand.

Between this case and the Supreme Court's recent ruling in Merrill v. Milligan (another shadow docket case), the Voting Rights Act is, at best, on life support. In Merrill, the Court overruled a decision requiring Alabama to create a second majority-Black congressional district. (The very "liberal activist" three-judge panel the Supreme Court overturned included two Trump appointees.)

In the Alabama case, the judges said it was just too close to the state's May primary to bother worrying about the Voting Rights Act. Sorry, Black voters!

Here in Wisconsin, on the other hand, our maps were summarily reversed and sent back despite the Wisconsin Elections Commission repeatedly saying that it needed the state's maps finalized by March 15 at the latest. That's because the candidate nomination period starts April 15 and people need to know what district they live in. Oh well! If you don't know what district you're going to be in for the next decade, too bad, so sad.

For the record, I part from most Dems in that I don't think it's a bad thing for a court to take a second look at Governor Evers's maps. But my issue is that the governor's maps didn't give enough power to Black voters — and SCOTUS is out here trying to diminish the power of Black voters even more than they already have.

But all of this is par for the course with the Roberts Court. I'm almost surprised they didn't just force the Wisconsin Supreme Court to just choose the Republican maps, like the legislature asked them to.


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Jamie Lynn Crofts
Jamie Lynn Crofts is sick of your bullshit. When she’s not wrangling cats, she’s probably writing about nerdy legal stuff, rocking out at karaoke, or tweeting about god knows what. Jamie would kindly like to remind everyone that it’s perfectly legal to tell Bob Murray to eat shit.

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