The Supreme Court issued a stay in the Alabama congressional Voting Rights Act case I wrote about last week and set the case (actually two related cases) for argument. This is bad news in the short run and likely worse news in the long run on two counts for voting rights plaintiffs.
In the short run, this is bad news because it means that Alabama will not be forced to create a second majority-minority district in time for the 2022 elections. This case will be argued I guess later this term, or maybe even next term and decided at least after primaries are held under Alabama’s preferred lines. So at best this is justice delayed.
But the signs are really ominous on two fronts. First, on the Voting Rights Act front, we could well see the serious cutbacks in voting rights law I wrote about in my post last week. Chief Justice Roberts dissented from the stay order but not the order setting these cases for argument. He reasoned that a stay was not warranted because the lower court fully followed existing law on how to apply the VRA to redistricting. But he said the law is a mess and the case should be set to reconsider the law. Put Roberts together with the 5 other conservative Justices in the majority that voted to both grant the stay and to hear the cases and there could be six votes that would read the VRA in redistricting in a horrible “race blind” way that Nick explained here and that Justice Kagan discussed today in her dissent. This could be a radical reworking of the VRA that would decrease minority representation, especially in the south.
Second, this case is really ominous in terms of federal courts accepting the Purcell Principle on steroids. This is a special rule in election cases that says federal courts should not make changes close to an election because it can cause voter confusion. The Court has been relying on it more and more to shut down important election law changes and point to this supposed technical rule. This is a serious extension to apply this in redistricting, where the court could have moved the primary and things could be month away. This Purcell creep is more Supreme Court meddling on the shadow docket, despite Justice Kavanaugh’s protests to the contrary in his concurring opinion today. He says the right thing that I’ve argued (that Purcell is not a separate rule but a special set of considerations in election cases to be considered along with other traditional stay factors) but doesn’t apply it fairly.
As I’ve said many times, these days, the last place you want to be with a voting rights case is before the U.S. Supreme Court.