Last Wednesday, while Judge Ketanji Brown Jackson — the first Black woman nominated to the US Supreme Court — answered questions from the Senate Judiciary Committee, her future colleagues used the court’s secretive “shadow docket” to continue its relentless bleeding of the Voting Rights Act.
In an unsigned majority opinion that two liberal justices described as “unprecedented,” the court blocked Wisconsin’s new state legislative map as a violation of the Equal Protection Clause. Its harm? Drawing one new majority-minority district in Milwaukee. Although the 2020 Census showed that the city’s Latino, Asian, and Black communities grew while the white population shrank, the conservative justices insisted that shouldn’t necessarily equate to any increase in political power.
The court, without oral arguments or a full set of briefs, effectively created a new standard for minority representation: Less is better. More is suspect. Taken together with a recent decision in a redistricting case from Alabama, it’s yet another warning that this court remains determined to shred even the tattered remains of the VRA and leave voters unprotected as GOP legislatures nationwide seek unparalleled control over elections.
This most recent case began when Wisconsin’s Democratic governor and Republican Legislature deadlocked over new state senate and assembly maps, and the state Supreme Court stepped in as referee. The court set one key criterion: a map that made the least changes from the current one, which effectively locked in a GOP gerrymander, often called the nation’s most extreme.
A bipartisan 4-3 majority on the state court determined that Governor Tony Evers’s proposal — which granted the GOP a 60-39 edge in the state assembly, but contained several more competitive seats than the Republican submission — was “vastly superior.”
The Evers map preserved almost all of the existing GOP gerrymander. But for state Republican lawmakers — and their colleagues on the Supreme Court — that wasn’t enough. The GOP filed suit, calling that new minority opportunity district a “21st century racial gerrymander.” And the US Supreme Court — which in 2018 preserved the brutal partisan gerrymander that kept the Wisconsin assembly in GOP hands even when Democratic candidates won hundreds of thousands more votes — suddenly discovered a district it could not countenance.
The law around race and redistricting can be complicated. Yet none of this follows precedent. Indeed, it’s not even consistent with a decision the court made last month in a redistricting case from Alabama — except in how it narrows the Voting Rights Act, limits the voting power of racial minorities, and entrenches Republican political advantage. It effectively ruled that Wisconsin could not create a seventh majority-minority seat without first proving that some smaller number would not be good enough. It reduces the VRA, our most powerful civil rights legislation ever, to grudging obligation.
The raw power play is apparent when compared with a decision last month from Alabama. In Merrill v. Milligan, Black voters sought a second majority-minority congressional district. Black voters make up 27 percent of Alabama’s population but have been cracked and packed in such a way as to have a chance to elect a member in only one of seven districts. The plaintiffs submitted detailed maps showing how easy it would be to draw a second majority-minority district. A lower federal court decision — delivered by two Trump-appointed judges — found it a slam-dunk and ordered a new map drawn immediately.
A 5-4 Supreme Court majority, however, stayed that decision and ordered full arguments to be heard in fall 2022 in a case that threatens to further weaken Section 2 of the VRA, which prohibits voting procedures that discriminate on the basis of race. Here, the extra work the court wanted to see from Wisconsin proving a minority district was warranted had been done. So the conservatives changed the rules: In Alabama, they ruled that it was too close to the November elections to change the map now. Yet the court had no trouble demanding a new map in Wisconsin, even though it was six weeks closer to the midterms.
The Roberts court ensured this redistricting cycle would be savage when it closed federal courts to partisan gerrymandering claims in 2019. This is also the first cycle without the preclearance previously required by the VRA, which has made it easier for lawmakers in Texas and elsewhere to lock in white political power even as minorities drive the nation’s population growth. Several conservative justices even want to strip the power of governors and state courts to have any say over redistricting and election procedures at all.
This is hardball politics divorced from history, consistency, morality, and precedent. The court is actively hollowing away the small-d democratic authority that binds a nation together.
David Daley is the author of “Ratf**ked: Why Your Vote Doesn’t Count” and “Unrigged: How Americans Are Battling Back to Save Democracy.”