Roberts Court: the 14th Amendment and Voting Rights Act require the representation of Black voters to be reduced
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As Republican senators rant about Pizzagate and children’s books, the Roberts Court is reaching new heights of anti-democratic cynicism:
On Wednesday, the Supreme Court issued an astonishing decision throwing out Wisconsin’s new legislative districts as a violation of the equal protection clause. The majority accused a Republican justice on the Wisconsin Supreme Court of greenlighting a “racial gerrymander” by creating one more majority-Black district in the state Assembly. Wednesday’s unsigned decision, issued through the shadow docket, hands Wisconsin Republicans an unexpected victory in their quest to reduce Black representation in the legislature. It also alters the law of redistricting in fundamental yet cryptic ways that might, to a cynic, seem designed to disadvantage Democrats in every single case.
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A second problem with the majority’s analysis is that it essentially accuses Hagedorn of engaging in racial discrimination. This suggestion is absurd. Over and over again, Hagedorn reiterated his goal of adopting a map with the “least change” from the previous plan. He prioritized “core retention”—keeping voters in their current districts—over all other factors. Even if Evers violated the equal protection clause by considering race, Hagedorn’s plainly did not. Why, then, does he not receive the presumption of good faith awarded to legislatures that draw actual racial gerrymanders? The majority doesn’t say. As Sotomayor put it: “Our precedents offer no clear answers to the question whose motives should be analyzed in these circumstances (the four justices who selected the map based on the ‘least change’ criteria, the Governor, or some combination) or how. The court does not purport to answer this question.”
And that’s not all! Not only did the Court rule that it’s a racist gerrymander to have a less gerrymandered map that gives more representation to Black voters, it did so in violation of the “principle” it’s used to deny challenges to actual discriminatory actions by state officials!
There’s a third problem with the decision that Sotomayor does not mention: It flagrantly violates the Purcell principle. This rule holds that federal courts should not alter state election laws shortly before an election. The conservative justices have invoked it relentlessly to freeze lower court decisions expanding voting rights. In February, they deployed it to block a decision requiring Alabama to undo its (egregious) racial gerrymander because the primaries were three and a half months away. Now the conservatives have pushed aside Purcell to overturn Wisconsin’s legislative map when the primaries are four and a half months away. Without evidence, they asserted that their decision allowed for “sufficient time” to adopt a new map. This claim is false; the Wisconsin Election Commission begged SCOTUS to issue a decision by March 15 or risk sabotaging voter registration for the upcoming primaries. Because SCOTUS missed this deadline by eight days, it has “increase[d] the risk of errors” in administering the election—exactly the kind of thing Purcell counsels against.
The only principles of Republican election law jurisprudence are “Republicans win” and “democracy loses.”