Voting rights are now 0 for 3 at the Supreme Court this year.
Today, by a vote of 5-4, the Supreme Court today reinstated the vast majority of a Texas’s map of congressional and state legislative districts that a lower court had found to be racially discriminatory. Perhaps reflecting the fraught state of race relations and voting rights in the country, the Court was bitterly divided on ideological lines, and both the majority and dissent laced their opinions with vitriol.
Today’s decision comes on the heels of two recent losses for voting rights: Husted, decided June 11, which allowed Ohio to commit a massive voter purge; and Gill v. Whitford, decided June 18, which allowed Wisconsin’s extreme Republican gerrymander to stand and made it harder to bring such cases in the future.
Today’s case, Abbott v. Texas, was never clear-cut. The Texas legislature ratified a congressional and state legislature voting map in 2011, but a court found it to be pervaded by attempts to dilute the voting power of Latinos by packing them in some districts and diluting them in others. The court imposed a temporary map while the legislature drew up a new one.
But Texas did a funny thing. In 2013, rather than draw up a new map, the legislature, in a special session, simply adopted the court’s temporary map, with only a handful of changes.
Immediately, conservatives and liberals squared off about what that meant. Conservatives said this was just a surefire way to draw an acceptable map: just copy what the court did and this mess will be over. Liberals said that the temporary map was never meant to be permanent, and that it was tainted by the discrimination in the 2011 version. Moreover, liberals said, Texas Republicans knew that full well and used the court’s map as a way to get away with perpetuating their racist gerrymander.
Today’s divided Court basically repeated those arguments.
Writing for the Court’s five conservatives, Justice Alito said that while there was racist intent in 2011’s map, there was no racist intent in 2013’s map – they were just trying to solve a problem by using a map that a court had drawn up itself.
Dissenting for the four liberals, Justice Sotomayor said that there didn’t need to be a finding of new racist intent in 2013 because the 2013 map still carried the “taint” – there’s that word again – of the 2011 one. That’s why the Texas legislature rushed the process through; they knew what they were doing.
In practical terms, this means that for the 2018 and 2020 elections, Texas’s map, taints and all, will be in effect. There is one exception: one of the “handful of changes,” House District 90, was found to have been drawn in a way to dilute Latino votes. Texas will have to fix that district before the next election. But the overall map has survived.
Abbott also means that the Latino population of Texas will be underrepresented in 2018 and 2020. As Justice Sotomayor wrote, “Those voters must return to the polls in 2018 and 2020 with the knowledge that their ability to exercise meaningfully their right to vote has been burdened by the manipulation of district lines specifically designed to target their communities and minimize their political will.”
And, of course, Abbott is one more case that shows the power of a single justice. We’ll never know how Justice Merrick Garland would have voted in this close case, but it’s easy to see him going the other way – which would mean Texas would have to junk its racist map and start from scratch.
Today’s opinions were notably nasty, on both sides.
Here’s Justice Alito, for the majority: “The dissent is simply wrong in claiming over and over that we have not thoroughly examined the record… … The dissent seems to think that the repetition of these charges somehow makes them true. It does not. On the contrary, it betrays the substantive weakness of the dissent’s argument.”
And here’s some choice cuts from Justice Sotomayor: “The majority is also just flat wrong … The majority engages in a cursory analysis of the record. … Nothing about these cases justifies the majority taking out its [magic] wand today. … The majority ignores all of the evidence in the record that demonstrates that the Legislature was aware of (and ignored) the infirmities in the maps.”
And here’s Alito again: “The dissent labors to explain away all these references to the 2013’s Legislature’s supposed duty to purge its predecessor’s allegedly discriminatory intent, but the dissent loses track of its own argument and characterizes the District Court’s reasoning exactly as we have.”
And here’s Justice Sotomayor basically accusing the majority of wanting to preserve a racist congressional map: “The Court today goes out of its way to permit the State of Texas to use maps that the three-judge District Court unanimously found were adopted for the purpose of preserving the racial discrimination that tainted its previous maps.”
These exchanges sound more like RuPaul’s Drag Race than the Supreme Court, and they are particularly unusual in the post-Scalia, Roberts-led Court where justices are meant to come together and respect one another. Then again, Justice Sotomayor has written several strong-worded dissents this year (often to the cheers of liberals), and Justice Alito was nicknamed “Scalito” for his stylistic and ideological affinities to the late justice. This case may be a taste of what’s to come.
One can’t help but read these sharply divided opinions as reflecting a sharply divided nation. What’s really going on here, after all? Republicans in Texas are trying to protect their majority in the congressional delegation. Sure, some may be intentionally racist, but more importantly, all are incidentally racist, since helping Republicans means helping Anglo voters over Latino voters. So the GOP is trying to dance within the boundaries of the Voting Rights Act and the constitution – and Democrats are fighting them.
Moreover, some of the evidence from 2011 is indeed shocking. As Justice Sotomayor observed, quoting the district court opinion:
[T]he evidence suggested that discriminatory motive permeated the entire 2011 redistricting process, as the D. C. court considered that “Texas has found itself in court every redistricting cycle [in the last four decades], and each time it has lost”; that “Black and Hispanic members of Congress testified at trial that they were excluded completely from the process of drafting new maps, while the preferences of Anglo members were frequently solicited and honored”; that the redistricting committees “released a joint congressional redistricting proposal for the public to view only after the start of a special legislative session, and each provided only seventy two hours’ notice before the sole public hearing on the proposed plan in each committee”; that minority members of the Texas Legislature “raised concerns regarding their exclusion from the drafting process and their inability to influence the plan”; and that the Legislature departed from normal procedure in the “failure to release a redistricting proposal during the regular session, the limited time for review, and the failure to provide counsel with the necessary election data to evaluate [Voting Rights Act] compliance.” 887 F. Supp. 2d, at 161.
That is, indeed, a damning pile of evidence, and it makes one question the motives of those same legislators only two years later. Did they suddenly repent of their discriminatory intent and become wholly impartial line-drawers? Of course not.
And everybody knows it. Responding to today’s decision, Anthony Gutierrez, executive director of Common Cause Texas, said that “voting rights in Texas were dealt a severe blow today by the U.S. Supreme Court as the Roberts Court upheld the legislature’s extreme racial gerrymander that robbed hundreds of thousands of minority residents of a voice in Austin.”
While justices bickered, that, ultimately, is the result of today’s 5-4 decision.