ELB Book Corner: Steve Vladeck: “How the Shadow Docket Came Full Circle in the 2022 Redistricting Cases”

I am pleased to welcome to ELB Book Corner Steve Vladeck, author of the new book, The Shadow Docket. Here is the last of three posts:

After introducing Purcell and how the Court used it inconsistently in the 2020 election cycle in ways that tended to favor Republicans and disfavor Democrats, Chapter 6 of my new book on the shadow docket turns to a pair of unsigned, unexplained decisions handed down in 2022 redistricting cases—and makes the case that here, as much as in any other set of shadow docket rulings, the Supreme Court’s behavior was undermining the republic (a charge leveled in the book’s subtitle), with hard-to-defend (and undefended) rulings that may well have altered which party currently controls the House of Representatives. It’s not a charge the book makes lightly, but the evidence is … significant.

When Alabama redrew its seven US House districts following the 2020 Census, the map included only one district where Black voters would form a majority, even though 27 percent of the state’s total population in the 2020 Census identified as Black. On November 4, 2021—the same day the map was signed into law by Governor Kay Ivey—a group of plaintiffs brought suit, arguing that the state had impermissibly engaged in “vote dilution” in violation of the Voting Rights Act. The suit was assigned to a special three-judge district court that featured two Trump- appointed district judges and the Clinton-appointed Eleventh Circuit judge Stanley Marcus.

On January 24, 2022, the three judges unanimously sided with the challengers. After a seven-day hearing featuring live testimony from seventeen witnesses, the court concluded that the plaintiffs had made out their case for a violation of the Voting Rights Act under the Supreme Court’s 1986 ruling in Thornburg v. Gingles—and that Alabama should have drawn a second “majority-minority” district. Noting that there was still plenty of time for the state to try again before the map needed to be finalized for the 2022 primary and general elections (it had taken less than a week to draw the unlawful map), the court ordered Alabama to redraw its map to include a second “majority-minority” district. That district would almost certainly create a second Democratic seat within Alabama’s 6–1 Republican House delegation.

Alabama appealed the ruling (and a separate one from a single district judge), but also asked the Court to stay both injunctions pending those appeals, to allow the unlawful map to be used for the 2022 midterms. On February 7, the Court agreed. There was no majority opinion, but a concurring opinion by Justice Kavanaugh, joined by Justice Alito, rested heavily on Purcell. Now promoting the Purcell principle to “a bedrock tenet of election law” (emphasis mine), Kavanaugh wrote that, “when an election is close at hand, the rules of the road must be clear and settled.” Thus, even though the district court injunction had specifically left it to the state to redraw its map in time for the 2022 midterm cycle (and had concluded that there was plenty of time for the state to comply), Kavanaugh complained that the district court was “swoop[ing] in and re-do[ing]” Alabama’s laws “in the period close to an election.”

There’s just one problem with Kavanaugh’s Purcell analysis: It makes no sense. The district court decision (which Kavanaugh referred to as a “late-breaking injunction”) came on January 24, more than nine months before the 2022 congressional election. And even if the Alabama primary was the relevant deadline, that election wasn’t until May 24, still four months away. Moreover, the challengers in the Alabama case had filed suit on the very day that the map had been adopted—the earliest possible moment for such legal action under the Supreme Court’s own precedents. Thus, Kavanaugh’s Purcell analysis effectively suggested that there was nothing the district court could have done to stop Alabama from using an unlawful map for at least one election cycle. Like the principle of tort law that “every dog gets one free bite,” every state would get one free election cycle using unlawful district maps every ten years.

Perhaps in an attempt to buttress the unpersuasive Purcell analysis, Kavanaugh’s concurrence also took a shot at the merits of the plaintiffs’ claims, suggesting that it was not as clear as the district court had said that Alabama’s proposed map violated the Voting Rights Act as interpreted in Gingles. In a footnote, he even alluded to the ordinary standard for a stay, writing that “even under the ordinary stay standard outside the election context, the State has at least a fair prospect of success on appeal—as do the plaintiffs, for that matter.” This formulation absolved the state of its burden to meet any of the other traditional requirements for a stay, focusing on just one of the four traditional factors. That omission is critical because, if the plaintiffs had a fair prospect of success, the significant risk that the new map violated their rights under the Voting Rights Act, together with the harm of using such a map, ought to have weighed conclusively against a stay (considerations that, again, fall out under Purcell).

This last point appears to have provoked Chief Justice Roberts into writing his own dissent. As he explained, although he agreed that the Court should take up the merits of whether Alabama’s map violated the Voting Rights Act, “the analysis below seems correct as Gingles is presently applied, and in my view the District Court’s analysis should therefore control the upcoming election.” In other words, because the district court correctly applied the law on the books, no emergency relief was warranted, even if, thanks to the conservative majority, that law was soon going to change. Roberts might well have been sympathetic to the rest of the conservatives’ desire to narrow Gingles; he just wasn’t willing to do so on the shadow docket.

But the harsher words came from Justice Kagan. Writing for herself and Justices Breyer and Sotomayor, Kagna criticized not just the substance of the majority’s ruling, but the way that it was reached. “There may—or may not—be a basis for revising our VRA precedent in light of the modern districting technology that Alabama’s application highlights,” Kagan wrote. “But such a change can properly happen only after full briefing and argument— not based on the scanty review this Court gives matters on its shadow docket.” Indeed, “the District Court here did everything right under the law existing today. Staying its decision forces Black Alabamians to suffer what under that law is clear vote dilution.” By staying the district court’s ruling based upon a hypothetical future change in the meaning of the VRA, the majority’s decision, she added, “does a disservice to our own appellate processes, which serve both to constrain and to legitimate the Court’s authority. It does a disservice to the District Court, which meticulously applied this Court’s longstanding voting- rights precedent. And most of all, it does a disservice to Black Alabamians who under that precedent have had their electoral power diminished—in violation of a law this Court once knew to buttress all of American democracy.”

Kagan’s return to a direct and explicit criticism of the shadow docket, a theme she had first sounded in her September 2021 dissent from the Court’s refusal to intervene in the Texas abortion case, provoked a new response from Kavanaugh. In his words, Kagan’s “catchy but worn- out rhetoric about the ‘shadow docket’ is . . . off target”: “The stay will allow this Court to decide the merits in an orderly fashion— after full briefing, oral argument, and our usual extensive internal deliberations— and ensure that we do not have to decide the merits on the emergency docket. To reiterate: The Court’s stay order is not a decision on the merits.”

Just as in the Texas case, though, Kavanaugh’s insistence that the Court’s emergency order was not a decision on the merits rang more than a little hollow, and not just because he said it thrice. Not only was the result of the ruling that Alabama could use its putatively unlawful map in the 2022 midterm elections, but that ruling was also understood by other district courts to require the same practical result. Ten days after the Supreme Court’s Alabama ruling, for instance, a Georgia district court refused to enjoin Georgia’s redistricting despite finding the exact same violation—that Georgia had failed to create enough majority-minority districts in its post-2020 redistricting (a conclusion that should have required Georgia to create another likely safe seat for Democrats in the state’s House delegation). Even worse, in Georgia, Governor Kemp had deliberately waited a month to sign the new maps into law—delay that could be explained only as an effort to frustrate preelection judicial review.

The problem, the district court explained, was the Supreme Court’s unexplained Alabama ruling, of which “it would be unwise, irresponsible, and against common sense for this Court not to take note.” Thus, whether or not the majority in the Alabama dispute had formally made new law, its ruling had the effect of making new law by prompting other courts to allow multiple states to use congressional district maps for the 2022 election cycle that violated the Supreme Court’s governing interpretation of the Voting Rights Act. As if Purcell wasn’t problematic enough already, now its (deeply contestable) invocation in Alabama was producing substantive downstream consequences elsewhere.

Any doubt on that score was eliminated in June 2022, when the Court likewise put a new congressional map in Louisiana back into effect after the district court and the Fifth Circuit had explained at great length why they should be blocked notwithstanding the Alabama ruling. The district court wrote 152 pages. The Fifth Circuit wrote 33. The Supreme Court wrote nothing. Between them, the Alabama and Louisiana rulings appeared to directly affect control of three seats in the House in the 118th Congress. A New York Times study would later conclude that they may have indirectly affected as many as seven seats—enough to tilt the balance of power from Democrats to Republicans.

The 2020 election cases reinforced many of the long-standing critiques of Purcell. But the 2022 redistricting cases took them to a new level, dovetailing with, and reinforcing, the emerging, broader critiques of the shadow docket that I unpack in the book. Not only was the Court intervening selectively and inconsistently when it came to lower-court injunctions of changes to state election rules, but it was increasingly doing so in a way that, as in the Alabama cases, made new law in function if not in form. Thus, by the spring of 2022, the Court’s use of the shadow docket in election cases had come to bear all the troubling hallmarks of the shadow docket that it had borne in the Trump administration and religious liberty cases the book surveys in Chapters 4 and 5. It’s not just that the Court was issuing more shadow docket rulings with greater real-world impacts; it’s that these rulings were increasingly producing effects in other legal decisions across the country, and that the Court’s use of the shadow docket, rather than the merits docket, for those purposes increasingly appeared to be willful, if not deliberate. And to an even greater extent than in those other categories of cases, the election cases appeared to be almost homogeneously partisan, with conservative justices voting in favor of whatever position supported the political power of Republicans; Democratic justices voting against it; and only Chief Justice Roberts, in a handful of the cases, publicly crossing over.

By insisting on a subjective, manipulable standard to govern election cases in an “overdetermined and undertheorized” 2006 ruling that was itself on the shadow docket, the Court has enabled itself to accomplish far more change through far less writing than ever before. And by applying that standard inconsistently, and in a way that outwardly favors Republicans far more often than it does Democrats, the justices have only emboldened criticisms that the Court is carrying out a partisan political agenda rather than a neutral judicial one. More than any other subset of the Court’s decision-making, it’s the election cases that best vindicate Justice Kagan’s charge in the Texas abortion case—that “every day,” the Court’s shadow docket behavior “becomes more unreasoned, inconsistent, and impossible to defend.”

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