Supreme Court Allows Alabama Redistricting Plan, Overturns Lower Court 5-4

Burt Likko says:

In theory, there could be district map “A” for the 2022 cycle and district map “B” for the 2024 cycle, so on both sides of the case let’s understand that “irreparability” is not the same thing as”permanent.” (As Kavanaugh’s concurrence notes at page 6.)

With that said, it’s not at all clear to me why the potential one-cycle injury as to certainty that might be sustained by candidates seeking to run under legislature’s proposed map, which has been found as a matter of fact to violate the only operative section of the Voting Rights Act that’s left on the book, is somehow privileged over the potential one-cycle injury that would be sustained by Alabama voters who have now been found as a matter of fact to suffer dilution. Particularly when four members of the majority do not comment on whether an incorrect interpretation of dilution was used below or whether the district court’s finding of dilution is based upon facts which are yet in substantial doubt and therefore likely to be overturned for abuse of discretion. The fifth member, the only one who tries to explain his vote, explicitly refrains from expressing an opinion on the merits but instead says that they “appear to be close and, at a minimum, not clearcut in favor of the plaintiffs.”

Now, if there had been a requirement for pre-clearance of districts, of course, this all would have been taken care of by now. Alas, SCOTUS by way of a conservative majority that included Chief Justice Roberts threw that requirement out several years ago based not so much on the law as on its own independent assessment of the moral necessity for that requirement despite Congress not choosing to revisit it. Because conservative judges don’t believe in legislating their policy preferences from the bench, you see.

Instead, the majority, or at least Kavanaugh as one of the members of that majority, appears to rely on precedent. The Purcell principle that Kavanaugh cites dates all the way back to 2010, and he is able to point to several cases from 2020 where the Court applied it. Venerable principle of Constitutional law, Purcell. Applying its test as Kavanaugh articulates, we find:

(i) are the underlying merits entirely clearcut in favor of the plaintiff? There was a pretty exhaustive opinion below finding by clear and convincing evidence that the legislature’s map unlawfully diluted votes;
(ii) will the plainitff suffer irreparable harm absent the injunction? Even if the map is corrected in the 2024 cycle, 2022 voters would suffer dilution;
(iii) has the plaintiff unduly delayed bringing the complaint to court? The plaintiffs filed the VRA challenge on the same day the map was approved by the Legislature; and
(iv) are the changes feasible without significant cost, confusion, or hardship? I am a bit foggy on this issue in the case, which is whether there is an alternative map readily available or whether someone needs to draw one up from scratch.

If point (iv) weighs in favor of keeping the Legislature’s map because there just isn’t any other map available and there’s somewhere between four to eight weeks between now and the first day the first absentee ballots have to be circulated, then that creates an incentive for legislatures wishing to bypass judicial oversight of their redistricting efforts to delay their own releases of the maps. Which would, of course, require a change in the law governing redistricting, which in the absence of any preclearance requirements, is now something that is entirely within the discretion of that same state legislature.

The perverse result: the need for advance certainty in the creation of maps so voters and candidates can know what’s going to happen will be eroded by application of the very principle that’s supposed to preserve it, because in order to minimize the possibility of a court re-drawing the map, the map has to be drawn as close to the filing deadlines as possible.

The law ought not be applied in a manner that incentivizes gamesmanship like this. And to conservative commenters, please remember — while it’s Republicans doing this bullshit in Alabama, it could just as easily be Democrats doing it in Maryland.

* This is a pretty detailed list of days when certain things have to happen at the state and county level, with breaks between now and the primary election on May 24 for Washington and Jefferson’s joint birthday, Mardi Gras in certain counties, and Confederate Memorial Day.Report