Category Archives: Voting Rights Act

Oral Argument Analysis of Merrill v. Milligan: Alabama Won’t Get All It Wants in Voting Rights Redistricting Case, But It May Well Get Enough

I listened to this morning’s argument in Merrill v. Milligan, and live-tweeted it here. My sense is that Alabama is not likely to get the Court to adopt its radical approach to rewrite Section 2 of the Voting Rights Act as a race neutral statute, but it might get something almost as good: a reworking of the existing Gingles framework to make it much harder for minority plaintiffs to get full representation in Congressional and other legislative districts.

There did not appear to be any appetite on the Court for Alabama’s constellation of radical arguments, including one that would require proof of racially discriminatory intent to require the creation of a minority opportunity district. That would look radical: the Court would be overturning decades of precedent, beginning with the Court’s 1986 decision in Gingles, which sets up a three-part threshold test for VRA redistricting claims, followed by a look at the totality of the circumstances.

Even Justice Alito, one of the most hostile justices to the VRA was not on board with that. He instead, however, aggressively and persistently pushed a reworking of the first of the Gingles factors in a way that would make it much harder for minority plaintiffs to prevail. It would essentially bring race neutrality in through the back door into that factor.

Justice Ketanji Brown Jackson, new to the Court, aggressively pushed back against Alito, and made very strong points about how Alito’s suggested approach is neither required by the Constitution nor in line with the text, history and precedent regarding Section 2 of the Voting Rights Act. It’s clear that Justices Kagan and Sotomayor are there with her.

Justices Barrett and Kavanaugh, and to some extent the Chief Justice, asked more of clarifying questions, and suggested they had an open mind on the question. (Recall that the Chief Justice, dissenting when a Court majority made up of the other conservative Justices put Alabama’s ruling on hold pending the hearing in this case, said that plaintiffs should win under existing law.) If one just listened to the oral argument, one might think that these Justices are up for grabs in this case. But we know from the oral argument in last year’s Brnovich case that they sounded openminded there too, but fell into line behind Justice Alito’s terrible opinion in that case. That could well happen again here. Indeed, I think that’s the most likely scenario. But it’s not certain.

Justice Thomas said little and I believe Justice Gorsuch did not ask a question (though I missed bits and pieces of argument and may have missed it). But they’ve been on record as saying that the VRA doesn’t even apply to redistricting. They are not going to be votes to help plaintiffs here.

We may not get a decision for a while. But if Justice Alito gets his way, there will be many fewer congressional districts, and state and local legislative districts, where voters of color get to elect representatives of their choice and have meaningful representation in legislative bodies.

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Previewing the democratic casualties sure to accompany SCOTUS OT 23

In advance of next week, Politico offers a thorough preview of the two election law cases on the Supreme Court’s docket this term. Both cases, it notes, are appeals from lower court decisions that threw out political maps drawn by GOP-controlled legislatures. Doctrinal nuances aside, as a practical matter, “the results of the cases could open the door to even more gerrymandering by legislators around the country, and they could also give legislatures even more power within their states to determine rules for voting — including how, when and where voters could cast their ballots.”

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Insightful Preview of Upcoming VRA Case

Linda Greenhouse has written, John Roberts’s Long Game. Is this the End of the Voting Rights Act?–an insightful preview of Merrill v. Milligan, which will be argued on October 4. The lengthy Atlantic article cuts straight to the point:

“The justices have framed the question for this round as ‘whether the State of Alabama’s 2021 redistricting plan for its seven seats in the United States House of Representatives violated Section 2 of the Voting Rights Act.’ But the real question, the perilous one underlying that seemingly benign formulation, is this: Is Section 2 itself constitutional?

The rest of the article proceeds to explain the intersections between John Roberts’s early career and the doctrinal backstory. It is too bad she did not directly explain City of Boerne v. Flores (1997) which would bolster why she is right to be concerned, but otherwise I found this a very accessible summary of the stakes.

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“John Roberts’s Long Game; Is This the End of the Voting Rights Act?”

Linda Greenhouse in The Atlantic:

Back in February, in a 5–4 vote, the Court’s conservative majority temporarily blocked the district court’s order; the majority didn’t even deign to issue an opinion explaining its reasoning. The justices’ audacious move freed Alabama to hold November’s congressional elections in districts that the lower court had declared invalid. This went too far even for one of the Voting Rights Act’s best-known critics, Chief Justice John Roberts, who dissented. To resurrect a pungent phrase, his colleagues out-segged him. But it would be a mistake to read his dissent as a sign that he has abandoned a project that has obsessed him since his days as a young lawyer in the Reagan Justice Department.

The most likely explanation for his dissent was that he flinched at the optics: Alabama’s request for a stay had arrived on the Court’s “shadow docket.” Every court maintains an emergency docket to handle matters that can’t wait for a full hearing. But during the Trump years, the Supreme Court exploited this device to hand victories to the president without a full briefing, public argument, or even advance notice.

Although Alabama is 27 percent Black, only one of its seven congressional districts—the one that includes Birmingham—has a Black majority, despite large Black populations concentrated in Mobile and in the “Black Belt” counties that stretch across the state. It may have struck the chief justice that using the shadow docket to preserve this status quo in defiance of the lower court’s decision was an unappealing step, and an unnecessary one at that.

When the justices decide the case, Merrill v. Milligan, this term, they will be free not only to overturn the lower court’s decision, but to rewrite the rules governing how the Voting Rights Act applies to similar cases anywhere in the country. Roberts conceded in his dissent that the district court had correctly followed precedent. He also made it clear that, in his view, the precedent is overdue for revision. As we saw in June, overturning precedent is no obstacle to a majority ready and willing to use its power to get what it wants.

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My New Article Posted on SSRN: “Election Reform: Past, Present, and Future”

I have posted on SSRN a draft of this encyclopedia article, forthcoming in the Oxford Handbook of American Election Law (Eugene Mazo, editor, forthcoming 2023). Here is the abstract:

This Chapter considers what election “reform” is and why many Americans want it; who has successfully reformed election rules in the United States and how; the current Supreme Court’s role as a barrier to many progressive election reforms; and the future of election reform in a hyper-decentralized, polarized electoral system. Throughout American history, dissatisfaction with substantive policies and with political and economic inequality, including across race and gender, has fueled interest in changing political arrangements. Proposals for political change also prompt reactions by those opposing them. Some election reforms have already been enacted and implemented, while others have failed. Constitutional change is difficult given a cumbersome amendment process requiring supermajority support. Other reasons for failure include lack of sufficient popular support, self-interested legislative resistance to popular ideas and the absence of a direct democracy workaround, and language in the United States Constitution, at least as interpreted by the Supreme Court. In the current hyper-polarized political system, bipartisan cooperation on large-scale election reforms including constitutional amendments will be rare, and one-party supported statutory reforms or those passed through direct democracy will be more common. The biggest impediment to current progressive-oriented reform is the jurisprudence of the conservative Justices who make up a majority on the Supreme Court. It is harder to predict the success of election reforms in the longer term.

Keywords: election reform, constitutional amendments, voting rights, campaign finance, redistricting, direct democracy, political polarization, Voting Rights Act, Fifteenth Amendment, Seventeenth Amendment, Nineteenth Amendment, Twenty-Third Amendment, Twenty-Fourth Amendment, Twenty-Sixth Amendment

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Follow-Up Written Answers for Senate Judiciary Committee on Voting Rights after Brnovich and Shelby County

Last July, I testified at a Senate Committee on the Judiciary, Subcommittee on The Constitution, hearing entitled “Restoring the Voting Rights Act after Brnovich and Shelby County.”

Two Senators had follow-up questions, and I have now posted the questions and my answers at this link.

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“The Limits of Procedure: Litigating Voting Rights in the Face of a Hostile Supreme Court”

Carolyn Shapiro has posted this draft on SSRN (Ohio State Law Journal Online). Here is the abstract:

This essay is a response to Charquia Wright’s article, Circuit Circus: Defying SCOTUS and Disenfranchising Black Voters, 81 Ohio St. L.J. 405 (2020). Professor Wright tells a story that is disturbing for two separate reasons. First, focusing on a 2016 Sixth Circuit case, Professor Wright demonstrates how a circuit court can circumvent certain types of Supreme Court precedent. More specifically, she documents how the “law of the circuit,” or the binding nature of circuit precedent can prevent a circuit court from reversing its own precedent that is in tension with, or even contradicted by, a Supreme Court opinion. Second, she documents the way that such an errant court can functionally abrogate legal protections for politically unpopular groups and minorities. 

This essay addresses both of those concerns. First, it focuses on some of the ways in which litigation strategy and procedural rules contribute to the stickiness of erroneous case law by deterring or preventing parties from arguing forcefully that circuit precedent is inconsistent with Supreme Court precedent. And it evaluates whether the Supreme Court itself could use tools like its emergency docket to supervise such rulings of lower courts.

Unfortunately, however, the Supreme Court has shown itself to be increasingly hostile to those rights. As the second part of the essay demonstrates, the Court is increasingly ruling against those seeking to enforce voting rights and to keep the doors of the federal courts open to civil rights plaintiffs. Moreover, it is using its emergency docket (as well as its plenary cases) not to supervise lower courts that fail to apply its pro-civil rights precedents, but to limit or eliminate the scope of those precedents. 

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“How a rare voting rights win took two races off Georgia ballots”

AJC reports:

An unusual voting rights victory is delaying elections for Georgia’s utility regulators until next year, allowing the Republican-led General Assembly to make new rules for Public Service Commission elections but giving Democrats a better chance to break the GOP’s stranglehold on the panel.

The outcome is the result of a case that went all the way to the U.S. Supreme Court after a judge ruled that the election couldn’t go on under Georgia’s system of allowing all voters to choose members of the PSC.

The case highlighted racial disparities on the bureaucratic but important board that sets electricity and natural gas rates for much of the state. In its 143-year history, just one Black commissioner has won election in a state where white voters always outnumber other races.

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“The Truly Scary Part of the $1.6 Billion Conservative Donation; It’s not about the legality. It’s about the loop.”

I have written this piece with Dahlia Lithwick for Slate. It begins:

On Monday, the New York Times broke the news that last year conservative mastermind Leonard Leo had obtained control over $1.6 billion through something called the “Marble Freedom Trust” to further his deeply conservative political and legal agenda. While much of the follow up reporting so far has focused on the unusual but apparently legal means by which the donor of the money—an elderly electronics magnate named Barre Seid—structured the transaction to avoid paying at least $400 million in taxes, the longer-term implications for a democracy as we understand it in America are far more dire.

Over the last three decades, Leo brilliantly created an interconnected series of institutions and firms designed to fundamentally reshape the American judiciary and in turn American society. This new infusion of over one billion dollars is going to solidify this effort in a way that will be hard for anyone to counter, in part thanks to new election law rules created by the Leo-shaped judiciary….

Here’s where the bootstrapping comes in. The very same conservative judiciary that Leo helped create has been central to crafting new legal rules which help elect more Republicans to office. Cases like Citizens United and Speech Now have opened the floodgates to fund large outside political groups such as Super PACs. Cases like Americans for Prosperity Foundation v. Bonta are making it easier for that large money to be contributed anonymously or through entities that can mask the identity of those who are pulling the strings, providing an easier path to influence without giving voters valuable information about who is trying to influence them and elected officials.ADVERTISEMENT

Plus, voting rights cases such as Shelby County and Brnovich v. DNC have seriously weakened the protection for minority voters under the Voting Rights Act, providing the path for white Republicans to gain ever more influence. The upcoming Milligan v. Merrill case that the Supreme Court will hear this term threatens to further weaken minority voting power in the redistricting process. Leo’s organizations seed the judiciary with jurists who advance the very theories that undermine core democratic principles from voting rights to financial disclosure rules. As doom loops go, it’s a successful operation in making sure that minorities have fewer and fewer protections while judges arrogate to themselves power to say more and more.

This term, the Supreme Court will hear Moore v. Harper, a case that stands to empower Republican state legislators against Democratic-majority state supreme courts that have been enforcing voting rights protections contained in state constitutions. Not coincidentally, the Leo-backed (and Orwellian-named) “Honest Elections Project” has been involved in efforts to get the Court to embrace a theory in Moore of the “independent state legislature” that would rob state courts of the power to protect voters’ rights. (They’ve tried the same approach in other cases, including one supporting the Republican Party’s attempt to disqualify some 2020 ballots in Pennsylvania.)

These election law rulings are just a means to an end. The end includes rulings like Dobbs on abortion, the loosening of gun laws, the paring back of affirmative action, and reading the religion protections in the First Amendment in ways that will serve not only to put religion into public schools but also to provide a path for anti-LGBTQ discrimination. The new Supreme Court supermajority also has begun hobbling the administrative state and erecting new barriers for the federal government to protect the public through covid vaccines and measures to limit climate change. The end is, and has always has been, to ensure that wildly unpopular ideas and policies can be put into effect by a life-tenured judicial branch that represents a well-funded conservative minority.

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“Activists in Florida say Black voters have seen their political power curtailed”

NPR:

A combination of new election laws and congressional redistricting has made it harder for Black communities in Florida to organize and vote, activists say.

Florida, which concludes its primary elections on Tuesday, is among various Republican-led states that have passed laws since the 2020 election that place new restrictions on voters — as well as on third-party groups that play a big role in registering racial minorities in Florida.

Ben Frazier and his small civil rights organization, the Northside Coalition of Jacksonville, recently spent an afternoon in the city helping a group of older Black voters update their voter registration.

That way, Frazier said, there are no issues when they go to vote.

“We don’t want your voter registration form to be thrown out for any reason,” he said. “They are doing a lot of different things to suppress the Black vote in this city and in this state.”

Last year, Republican lawmakers in Florida passed Senate Bill 90, a sweeping law requiring people to apply to vote by mail more often. It also set new limits on drop boxes. And this year, legislators passed Senate Bill 524, which creates new and harsher penalties for voter registration organizations for things like turning in forms late.Sponsor Message

And notably, Frazier said, the latter law created a new policing unit focused on voting crimes.

“I think all of that has a chilling effect. People are afraid of the police,” he said. “We know that this is one of many attempts to suppress the Black vote.”

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“Arkansas violated the Voting Rights Act by limiting help to voters, a judge rules.”

NYT:

A federal judge ruled that Arkansas violated the Voting Rights Act with its six-voter limit for those who help people cast ballots in person, which critics had argued disenfranchised immigrants and people with disabilities.

In a 39-page ruling issued on Friday, Judge Timothy L. Brooks of the U.S. District Court in Fayetteville, Ark., wrote that Congress had explicitly given voters the choice of whom they wanted to assist them at the polls, as long as it was not their employer or union representative.

Arkansas United, a nonprofit group that helps immigrants, including many Latinos who are not proficient in English, filed a lawsuit in 2020 after having to deploy additional employees and volunteers to provide translation services to voters at the polls in order to avoid violating the state law, the group said. It described its work as nonpartisan.

Here is the ruling.

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Breaking: Supreme Court Reverses Eleventh Circuit in Georgia Voting Rights Suit Finding Georgia Secretary of State Conceded Purcell Principle Could Not Apply; Remands for Further Proceedings (No Noted Dissents) [Updated 11th Circuit Order on Remand]

Georgia’s failure to use districts for electing certain statewide officials was found to violate the Voting Rights Act, and the district court required the use of districts in an upcoming election. The Eleventh Circuit put that ruling on hold, apply the Purcell Principle to say that the ruling came too close to the next election to be implemented. Today, the Supreme Court, without noted dissent, said the Eleventh Circuit erred.

Here is the order:

The application to vacate stay presented to Justice Thomas and by him referred to the Court is granted. The August 12, 2022 order of the United States Court of Appeals for the Eleventh Circuit staying the district court’s injunction is vacated. Respondent’s emergency motion for a stay pending appeal relied on the traditional stay factors and a likelihood of success on the merits, see Nken v. Holder, 556 U. S. 418 (2009), yet the Eleventh Circuit failed to analyze the motion under that framework. Instead, it applied a version of the Purcell principle, see Purcell v. Gonzalez, 549 U. S. 1 (2006) (per curiam), that respondent could not fairly have advanced himself in light of his previous representations to the district court that the schedule on which the district court proceeded was sufficient to enable effectual relief as to the November elections should applicants win at trial. The Eleventh Circuit may reconsider whether a stay pending appeal is appropriate, subject to sound equitable discretion. 

I read this as not a retreat from vigorous application of Purcell (a lower court used it today to deny relief in the Georgia no-water-to-voters-waiting-on-line case). Instead, it is about Georgia officials representing in court that there was enough time to make this change to district elections for Georgia commissioners in time.

But the conservative 11th Circuit gets another crack at this under the traditional stay factors (Nken), and they could side with Georgia officials on this second bite at the apple. Stay tuned.

Update: The 11th Circuit has already ordered supplemental briefing.

Further update: Georgia gives up.

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