Preview: A Shattering Blow to Fair Elections

I am Dahlia Lithwick. Welcome back to an unscheduled midweek episode of Amicus Slate's podcast about the courts and the law and the Supreme Court in which Mark Joseph Stern and I come together on this. Opinion Paloosa season with yet more bad news from the U.S. Supreme Court. Hi, Mark. Hi, Dahlia. And welcome to our Slate Plus members who are going to have access to this conversation and to all of our Opinion Pallusa episodes in full. If you want to hear the whole thing, go to slate.com slash amicus plus. And thank you for supporting us on this end-of-term roller coaster. Okay, so here it is, Mark, on Tuesday evening, the Supreme Court handed down an unsigned per curiam shadow docket order putting in place Alabama voting maps from 2023 that would badly disadvantage the state's black voters and relying on its... See, I'm putting that in quotation marks in Louisiana v. Calais to make it all but impossible to challenge racially discriminatory voting maps ever again. Mark, you wrote on this just a week ago and said that this case would actually dare the U.S. Supreme Court and the right-winged justices on the court to say. what it really thinks about black people's voting rights. What were you trying to warn us about in that piece and what has indeed come to pass since then? So my piece a week ago, what a long week it's been, said that this would sort of give the Supreme Court's Republican-appointed justices an opportunity to say whether or not they have truly abandoned the field of voting rights and fully annihilated voting rights for racial minorities and given states, particularly Southern Republican legislatures, a free hand to entrench white supremacy through brutal racial gerrymanders. And the Republican appointing appointed justices have done exactly that. In this barely reasoned unsigned shadow docket order, the Republican appointed justices have allowed Alabama to impose at the very last minute, as people are already voting in an ongoing primary election. a map that eliminates one very diverse opportunity district for racial minorities that's currently represented by a black Democrat and just carve it up in a way that gives white voters total control over that district and they are certain to elect a white Republican instead. And so this badly dilutes the political representation of black Alabamians.

district that is more diverse and that stands a real chance of electing a black representative. So the district court gave the legislature a chance to draw that map. The legislature refused. It defied the Supreme Court, basically. It refused to draw a fair map. So the district court imposed a map that created that second opportunity district. And the Supreme Court allowed that to happen. The Supreme Court had no problem with that because, of course, it was implementing its decision. And then we wait. We wait for a few years for the Supreme Court to decide Louisiana versus Kelly. And of course, in Louisiana versus Kelly, the Supreme Court guts what had remained of the Voting Rights Act and allows states to resume ruthless racial gerrymandering. And at that point, Alabama had been lying in wait and it sprung out and said, hey, now that there's basically no more VRA, we can implement this super racist map that we drew in 2023 that the district court wouldn't allow us to draw. So Alabama. goes up to the Supreme Court. This is tortured, but I think it's important because it shows the gamesmanship by the state. Alabama goes up to the Supreme Court. It says, hey, you should make the district court reconsider this decision after Calais. The Supreme Court agrees six to three. The district court says, well, we've reconsidered it, but we don't have anything to say that's different because we found that you intentionally discriminated against black voters. And we'll talk about why there's a lot of evidence on the record to show this. And the district court said Calais was a voting rights act case. It wasn't a constitutional case. It said that intentional. racial discrimination is still unlawful. So we're going to stand by our decision. And then Alabama went back to the U.S. Supreme Court. And then on Tuesday, the Supreme Court... basically just overruled the district court, said, eh, we don't really see any intentional discrimination. We think you defied our decision in Calais. We are going to allow Alabama to implement its racist map, eliminating one opportunity district for black voters, eliminating one black Democratic representative. And this is really important, unleashing just massive chaos on Alabama's primaries, which are already in progress because now hundreds of thousands of voters have to be reassigned to new districts. And the state. has previously represented that that would take months. Now it has days to do it. Okay. So one important thing, and you've said this, but I think we have to say it explicitly, is that Alabama cynically and in violation of, you know, Supreme Court orders and lower court orders played this like a fiddle, right? Like Alabama. waited. There was ample opportunity to get this sorted so that it wasn't happening in an emergency posture. They waited it out. As you noted, Mark, immediately after Calais comes down, and Calais is like, this has nothing to do with, you know, Milligan. That's a whole different thing. Right. Alabama's like, hey, I guess Milligan's over and like, let's go. At the time, Justice Sotomayor, you mentioned this got resolved very quickly, again, perfunctorily. And Justice Sotomayor warned, at the time, right? This is right after Kelly comes down. Oh, Alabama's doing it. And the court ignores her.

Right. Justice Sotomayor warns correctly that it's a pretty bad omen that Alabama is going to try to re-implement this map and that the Supreme Court at this point had told the district court, you know, reconsider your decision, right? At least give the legislature some wiggle room here. Because Calais, on its own terms. had nothing to do with the standards in this case, the operative standards. Because, again, I can't say this enough. Calais was about the Voting Rights Act. Calais was not about intentional discrimination, right? The question was, in Calais, can a legislature be faulted for diluting racial minorities representation in a way that is not intentionally discriminatory? So statutory case, not directly about intentional discrimination. But this Alabama case is about racism, like, plain and simple. Like, this is a case about a legislature that we have a lot of evidence on the record went after black voters because they are black, kept white voters political representation as much as possible because they are white, exalted the European heritage of these white communities that had to be kept together and given political representation while totally dismissing the interests of black voters. And it's a constitutional case. First and foremost, most importantly here, this became a case about intentional race discrimination. Samuel Alito, in his colleague opinion, said that wasn't this, right? That he wasn't touching those issues. He was just kind of updating the Voting Rights Act. And he said he wasn't overturning Milligan from 2023. He said, oh, no, we're not overturning Milligan. This is a different case, you know, different questions, different facts. And now what we have seen is that the court really did overturn Milligan, you know, from 2023, three long years ago. And the court has imported the sort of jury-riged standards against Black voters that it created in Calais, it's imported those into the constitutional context. So that's no longer just a Voting Rights Act case. It is now also, in effect, a constitutional case that guts what had remained of protections under the 14th and 15th amendments for black and brown voters who were targeted through racial gerrymandering. And it's worth saying, I think, that we used to always say sort of the template for how the John Roberts Court. would wreak havoc was they do it small and they do it big, right? And it takes years and years. And then they say, oh, it's inevitable. We did the little thing. And I think you're pointing to this new pattern, particularly in these voting rights cases where the court says it's doing it small. And then does it big and says, oh, this is entirely and utterly, completely controlled by the thing that was supposed to be cabin, as you say, to the Voting Rights Act. So it is a very, very gaslighty move for a court that was already gaslighting. I would like you to just explain to us to the degree that you were able. And this is hard, really hard after Tuesday night's order. What challengers would have to show now? under the new tweaks to the tests to prevail on a claim, or perhaps better, I want you to tell us what new barriers has the Supreme Court now erected for plaintiffs to ever again prevail in a case that argues that a state was using racially discriminatory practices to constrain their votes?

I think the best way to answer that is to tell you what wasn't enough proof in this case for the plaintiffs to prevail, right? So in this case, the Alabama... Slate Plus members can access our conversation in full right now. We are tracking the final chaotic weeks of the term in real time, explaining the decisions as they land this opinion paloosa. Visit slate.com slash amicus plus to get access wherever you listen, to get all of our opinion paloosa extras across slate.com and here on amicus, go to slate.com slash amicus plus. You can also subscribe to Slate Plus directly from the Amicus Show page on Apple Podcasts and on Spotify. We'll be back with your regularly scheduled Amicus episode on Saturday morning. Until then, take good care.