Chief Justice Roberts Suffers a “Told Ya So” Moment on Voting Rights.

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In 2013, Chief Justice John Roberts led a divided Supreme Court in Shelby County v. Holder in gutting Section 5 of the Voting Rights Act, which once required that certain jurisdictions with a history of voter suppression receive “preclearance” from the Justice Department or a three-judge panel before any changes were made to laws or district lines that could discriminate against minorities. Roberts wrote at the time:

A statute’s “current burdens” must be justified by “current needs,” and any “disparate geographic coverage” must be “sufficiently related to the problem that it targets.” The coverage formula met that test in 1965, but no longer does so.

Coverage today is based on decades-old data and eradicated practices. The formula captures States by reference to literacy tests and low voter registration and turnout in the 1960s and early 1970s. But such tests have been banned nationwide for over 40 years. And voter registration and turnout numbers in the covered States have risen dramatically in the years since. Racial disparity in those numbers was compelling evidence justifying the preclearance remedy and the coverage formula. There is no longer such a disparity.

The idea that racially motivated voter suppression had been solved by 2013 was met with widespread derision and alarm. In her famous dissent in this case, the late Justice Ruth Bader Ginsburg wrote, “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”

Those words have proved prophetic. Yesterday’s decision by the Supreme Court in Merrill v. Mulligan reinstated a congressional map drawn up by the GOP legislature in Alabama that keeps that state with only a single Black Congressional representative even though, as the New York Times notes, Alabama’s voting age population is 27 percent African American. A three-judge panel, which included two Trump appointed judges, had unanimously ruled that the map violated the Voting Rights Act by intentionally packing and cracking Black voters through gerrymandering so that their numbers were not reflected in the House delegation from the state. 

The high court’s “shadow docket” opinion means that the GOP map will be in use for the November midterms. Per usual of late, the justices did not rule on the merits of the case. In his concurring opinion, Justice Brett Kavanaugh, joined by Justice Samuel Alito, wrote that the “stay order does not make or signal any change to voting rights law.” Rather, he believed, the stay was necessary because the lower panel had acted too soon before a coming election. “When an election is close at hand, the rules of the road must be clear and settled,” Kavanaugh wrote. “Late judicial tinkering with election laws can lead to disruption and to unanticipated and unfair consequences for candidates, political parties and voters, among others.”

Kavanaugh drew this line even though the election was ten months away when the lower court ruled. In her strongly worded dissent, Justice Elena Kagan took issue with the opinion’s reasoning and timing. “It does a disservice to the district court, which meticulously applied this court’s longstanding voting-rights precedent,” Kagan wrote. “And most of all, it does a disservice to Black Alabamians who under that precedent have had their electoral power diminished — in violation of a law this court once knew to buttress all of American democracy.” She continued, “Alabama is not entitled to keep violating Black Alabamians’ voting rights just because the court’s order came down in the first month of an election year.” The two other liberals on the Court joined her dissent.

Roberts found himself this time in the minority, along with the three liberal justices. He wrote in his separate dissent that the lower court had “properly applied existing law in an extensive opinion with no apparent errors for our correction”—essentially agreeing that discrimination was the basis behind the new map. Roberts even hinted that the state of the law on voting rights was in disarray because of the Supreme Court’s precedents, including presumably his own in Shelby County. The opinions “have engendered considerable disagreement and uncertainty regarding the nature and contours of a vote dilution claim,” Roberts admitted. The correct path, he believed, would have been to hear the state’s appeal but not to grant a stay of the ruling in the meantime.

It is hard to miss the irony that had Section 5 of the Voting Rights Act not been eviscerated by Roberts’ own naive opinion nearly nine years ago, Alabama would have had to preclear the map with the Justice Department or a panel of judges—much like the one that had found the map illegal under the Voting Rights Act. In all likelihood, the Alabama GOP would have known its map would not pass muster and would have drawn a far fairer map to begin with, rather than pass a blatantly discriminatory one and then seek to run out the clock with the Supreme Court presumably on its side.

Armed with the knowledge that the conservative majority will allow maps like Alabama to stand for the time being, lawmakers in other GOP-controlled states likely will take more aggressive stands in places like South Carolina and Florida. “Make the worst map you can, use it for the midterms, then if it gets overturned later by the federal courts, so be it,” is the probable takeaway here.

The ruling does not affect state law cases, such as those pending in Ohio and North Carolina, where provisions of those states’ constitutions control, rather than what’s left of the Voting Rights Act. Nor does the ruling permit a map that is any worse in terms of likely Democratic and Republican House seats than the one that was already in place, though any new map with two Black representatives almost certainly would have shifted one Alabama Congressional seat from red to blue, a fact that cannot have been overlooked by this increasingly partisan Court.

But if there were ever any proof that we are very much still in a rainstorm of overt racial discrimination in voting rights—and that the Supreme Court has indeed completely thrown away the umbrella—yesterday’s decision was it. And Chief Justice John Roberts now joins the soaking wet.