The last week in June always means the biggest, most consequential US Supreme Court decisions of the term, and this year has been no exception for the Roberts court. Monday, we got a massive decision on race and gerrymandering, and the fact that it was a 5-4 decision authored by Justice Samuel Alito should be enough to infer the disaster that awaits the country. SCOTUSblog's Amy Howe confirms that the decision in Abbott v. Perez is a near-total victory for the GOP on the subject of redistricting with the intent of suppressing the minority vote.
Alito then turned to what he characterized as the main question on the merits of the state’s appeal: whether the district court was wrong “when it required the State to show that the 2013 Legislature somehow purged the ‘taint’ that the court attributed to the defunct and never-used plans enacted by a prior legislature in 2011.” According to Alito, the district court’s analysis was exactly backward: Even if a state has been found to have discriminated in the past, he observed, there is still a presumption that it acted properly in drafting later redistricting plans. This means that the plaintiffs challenging a redistricting plan still have to show that the legislature intended to discriminate when it enacted the current plan.
Alito acknowledged that the intent of the Texas legislature when it enacted the 2011 plan was something that a court could consider, and he added that the mere fact that the 2013 plans largely mirrored the 2012 interim plans adopted by the court did not immunize the 2013 plans from a challenge. But when all of the evidence is considered together, Alito concluded, it does not show that the legislature intended to discriminate against minority voters. If anything, Alito stressed, the available evidence suggests that the legislature did not intend to discriminate, but instead adopted the 2013 plans because it had been advised that doing so was the best way to end the “expensive and time consuming” litigation over the redistricting plans.
The majority’s holding that the district court had applied the wrong test resolved almost all of the case in Texas’ favor, leaving only four districts that the district court had invalidated for reasons other than discriminatory intent. Here the majority reversed the district court’s holding that three of the districts diluted the votes of minority voters, but it upheld the district court’s ruling that a state legislative district in Tarrant County was the product of racial gerrymandering. The legislature had “substantially modified” the Tarrant County district in 2013, and the state contended that it had done so to comply with the Voting Rights Act. But the reasons that the state cited to justify its decision to focus on race in drawing the district were “simply too thin a reed to support the drastic decision to draw lines in this way,” Alito concluded. The court therefore sent the case back to the lower court, presumably for it to apply the correct test to the districts that it had previously struck down.
In other words, after five years ago when the Roberts court blew a hole in the Voting Rights Act's Section 5 by throwing out pre-clearance rules in Section 4 of the law, Alito all but finished the job by effectively neutering Section 2.
It basically makes it impossible to bring a redistrcting challenge based on race, because Alito basically says that state legislatures that draw districts must be given the benefit of the doubt and they can't be racist.
Think about that.
In her dissent, Justice Sonia Sotomayor ripped Alito a new one.
In a blistering final paragraph that closed with the phrase “I dissent,” rather than the “I respectfully dissent” often used by the justices, Sotomayor protested that today’s ruling “does great damage to” the right “to equal participation in our political processes.” “Not because it denies the existence of that right, but because it refuses its enforcement. The Court intervenes when no intervention is authorized and blinds itself to the overwhelming factual record below. It does all of this to allow Texas to use electoral maps that, in design and effect, burden the rights of minority voters.”
Understand that if Republicans are still in charge of your state when redistricting rolls around in 2021, minority voters are going to be gerrymandered into oblivion. The VRA's protections for minority voters have been fully dismantled. Trump will never sign a new VRA into law, even if Democrats somehow manage to win back the House and the Senate and get something passed.
It was bad five years ago. It's worse now. It will be exponentially worse in 2020, 2022, and 2024.
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