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Last week, the Supreme Court issued a decision on gerrymandering, ruling against an Alabama congressional district map which discriminated against African-American voters. The ruling will force Alabama to create another majority Black district, and the precedent it sets is likely to lead to the creation of new such districts in Georgia, South Carolina and Louisiana too. Once ensured adequate representation, the populations of these districts are likely to vote for African-American candidates, and those candidates are likely to be Democrats. Given the slim balance of power in the House, that will make it harder for Republicans to keep control there at the 2024 election.
This ruling came as a huge surprise because under Chief Justice John Roberts, the Supreme Court has issued a number of decisions on voting rights which showed a willingness to completely tear up past precedent in service of the conservative interest of racial discrimination in voting practices. If this case had gone the other way, it would have completely eviscerated one of the last consequential provisions of the 1965 Voting Rights Act, the landmark civil rights law which the court took an axe to in previous decisions.
One of the key features of the Voting Rights Act was the idea of “preclearance” - a requirement that states and localities with a history of racial discrimination not be allowed to make changes to their voting practices without approval from the Justice Department or a federal court. States in the South that had previously used extreme gerrymanders or voter suppression to prevent Blacks from achieving political representation couldn’t do it anymore. Unfortunately, in 2013, the Supreme Court decided in Shelby County v. Holder to do away with preclearance, allowing states to go ahead with discriminatory measures, and maps like the one in Alabama were the result. In another decision in 2021, it said that the mere fear of election fraud can be used to justify voting restrictions that disproportionately harm minority voters.
For the court to place some limits on voter suppression is welcome, but it shouldn’t obscure the fact that the overall situation for voting rights in America is much worse than it was ten years ago, before the ruling in Shelby County, as noted by the Brennan Center for Justice:
The decision in Shelby County opened the floodgates to laws restricting voting throughout the United States. The effects were immediate. Within 24 hours of the ruling, Texas announced that it would implement a strict photo ID law. Two other states, Mississippi and Alabama, also began to enforce photo ID laws that had previously been barred because of federal preclearance.
The Brennan Center for Justice has consistently found that states previously covered by the preclearance requirement have engaged in recent, significant efforts to disenfranchise voters. A 2018 Brennan Center report concluded that previously covered states have purged voters off their rolls at a significantly higher rate than non-covered jurisdictions. Our 2018 State of Voting Report found that previously covered states have enacted a series of laws and others measures that restrict voting since Shelby County ended preclearance.
Or take this, from Wikipedia (but with good sources!):
The ruling has made it easier for state officials to make it harder for ethnic minority voters to vote. Research shows that preclearance led to increases in minority congressional representation and minority turnout. Five years after the ruling, nearly 1,000 U.S. polling places had closed, many of them in predominantly African-American counties. Research shows that changing and reducing voting locations can reduce voter turnout. There were also cuts to early voting, purges of voter rolls and imposition of strict voter ID laws. A 2020 study found that jurisdictions that had previously been covered by preclearance substantially increased their voter registration purges after Shelby. Virtually all voting restrictions after the ruling were enacted by Republicans.
The question naturally arises as to why the court would suddenly find some limits now. As always with the Supreme Court, it’s very hard to know. But it is notable that the court is currently in a period of extreme turmoil following some very controversial recent decisions, not least of which was the overturning of Roe v. Wade, and some damning revelations about conflicts of interest affecting two of the most conservative justices on the court. Clarence Thomas and Neil Gorsuch - both of whom voted against the winning side in the Alabama case - have both been found to have had inappropriate financial relationships. In Thomas’s case it’s with a conservative megadonor who has gifted him millions of dollars worth of private flights and luxury holidays, and in Gorsuch’s case it’s with a law firm that had business before the court.
There’s a good chance, then, that Chief Justice John Roberts is trying to engage in some reputation management for the court. Compared to what the court has done already, this was a relatively minor case. The sum total of the court’s actions on voting rights still show a disregard for precedent and a desire to serve conservative interests by enabling racial discrimination. Meanwhile, a much bigger case concerning affirmative action in college admissions is due this month, and some observers think that the Alabama decision was a minor concession designed to soften the blow of outlawing affirmative action.
Whatever the reason for the decision, attempts to rehabilitate the court are likely to fail. The court’s disapproval ratings are at highs unseen in modern history - nearly double what they were 20 years ago - and much bigger changes will be needed to repair the damage. Simply refusing to take every single opportunity to once again overturn precedent in service of the narrow political interests of the conservative movement is not enough.