The Supreme Court knocked down Alabama’s racially gerrymandered congressional map in a shocking 5-4 decision Thursday, preserving a key section of the Voting Rights Act.
On top of this Court’s habitual hostility towards voting rights, the decision was all the more surprising given that a majority of justices had let the map stand and be used for the 2022 midterms, despite a lower court finding that the map likely diluted the Black vote in violation of the VRA.
The ruling fueled speculation about what the decision might mean for pending cases that will decide maps for 2024: One major prognosticator, the Cook Political Report, immediately shifted five seats in Democrats’ direction. It also prompted bitter reflection on what the Court’s opinion could have meant for the 2022 midterms, had the questions in the case been resolved sooner.
In 2022, the Court had put the lower court’s order that Alabama redraw the map for the election on pause, and did so through the shadow docket, without explaining its reasoning. While the shadow docket was once reserved for matters that require unusually quick Court action, the conservative-dominated bench has grown increasingly comfortable using it to quietly overturn precedent and hand down momentous decisions.
Both Chief Justice John Roberts and Elena Kagan wrote in dissent at the time.
“The District Court’s analysis should therefore control the upcoming election,” Roberts wrote. “The practical effect of this approach would be that the 2022 election would take place in accord with the judgment of the District Court, but subsequent elections would be governed by this Court’s decision on review.”
Justice Brett Kavanaugh, part of the majority, snapped back that the stay was not a ruling on the merits, and merely to preserve order before the election (order that he himself found in Thursday’s ruling to have massively disenfranchised Black voters).
By issuing that unnecessary stay rather than letting the lower court’s order that Alabama redraw its maps proceed, the Supreme Court effectively axed a seat in the House of Representatives that almost certainly would have gone to the Democrats.
And the effect of their silent ruling likely touched other states — and other seats — as well.
“Similar litigation in Georgia and Louisiana — where lower court judges said they thought the VRA was probably violated but stayed their own opinions following the signal of the Supreme Court in Milligan — would likely have produced at least one more minority-opportunity district that would have elected a Democrat,” Doug Spencer, an associate professor of law and election law expert at the University of Colorado, told TPM.
Elections for those seats alone likely wouldn’t have been enough to swing the House, barring further ripple effects. But, as Spencer pointed out, they would have had “implications for the already challenging election of Kevin McCarthy, and his fragile coalition which would be even weaker.”
The McCarthy-led Republican majority controls the House by just a handful of seats — 222 to Democrats’ 212 — complicating the speaker’s efforts to get a majority of Republicans to follow his lead on votes and even on questions of strategy.
Thursday’s decision will also almost certainly have a significant effect on the 2024 elections, when Democrats will battle to overcome Republicans’ slim majority and take back the chamber. Some of that stems from ongoing litigation.
“I imagine that Democrats might pick up five to six seats max from litigation in Georgia, Louisiana, and Texas,” Spencer calculated.
The Cook Political Report’s Dave Wasserman tweeted that among the five seats the organization is now shifting bluer, two formerly solid Republican seats will likely end up being solid Democratic ones.
Democracy Docket, a Democratic-aligned website that tracks redistricting cases, found that Thursday’s decision will affect redistricting cases in Alabama, Arkansas, Georgia, Kansas, Louisiana, Michigan, Mississippi, North Dakota, Texas and Washington — though the states Spencer tallied plus Alabama will likely have the most direct effect on congressional seats.
In a chamber currently governed by a handful of votes, flipping control of five or six seats could mean a significant Democratic advantage (or, more accurately, unraveling a manufactured Republican advantage).
And the ramifications go even beyond congressional majorities.
As Spencer points out, the decision will also affect state legislative districts, which have become all the more critical with a potentially significant, looming Supreme Court case — Moore v. Harper — yet to be decided.
“This might become especially important if the Supreme Court agrees with the Independent State Legislative Theory that pushes more authority to state legislatures in this space,” he said.
The Independent State Legislature Theory is a right-wing concoction that would give state legislatures absolute power to administer federal elections — to the exclusion of state courts, state constitutions and governors’ vetoes. While state-level elections traditionally engender low turnout and little attention, the political makeup of the chambers would be more important than ever under the theory.
The Court’s decision on Moore v. Harper and the Independent State Legislature Theory continues to hover in limbo after the newly-Republican North Carolina Supreme Court overturned its one-year-old decision on the state’s maps, potentially mooting the underlying case. The Supreme Court has twice asked for additional briefing on how it should proceed with the case, but has yet to act on that guidance.