Mariam Zuhaib/AP Photo
The Supreme Court made a number of interventions and rulings in 2022 that allowed states to use congressional maps that lower courts had already found to be racially biased.
A set of ongoing lawsuits over new voting districts drawn after the 2020 census have made it more and more clear that some Republican- and Trump-appointed judges are tacitly colluding with state officials to give Republicans an advantage in elections, by disenfranchising the growing population of Black and Latino voters.
They’ve been quietly successful thus far. But a decision expected as soon as today from the U.S. Supreme Court will be a key indicator as to how these anti-democratic efforts will fare in this year’s and future elections.
This Republican effort to predetermine election results isn’t coming from the place you might expect. Despite all the bluster and countless failed lawsuits, former President Donald Trump and his allies haven’t been able to produce a shred of evidence to back their claims of rampant election fraud by Democrats in the 2020 presidential election. Former Trump lawyer Rudy Giuliani had his radio show canceled last week for repeatedly violating a station ban on spreading lies about the 2020 election, for example.
On the other hand, there’s clear evidence that conservatives, acting in concert with courts that they’ve stacked with partisan judges, have effectively stolen elections in recent years. Republicans now hold a majority of seats in the House largely because GOP-appointed judges and U.S. Supreme Court justices allowed state legislators to draw and use electoral maps that were racially discriminatory. And they appear to be relying on the same strategy to hang on to those seats and gain others in November.
The Supreme Court’s right wing made a number of indefensible interventions and rulings in 2022 that allowed states to use congressional maps that lower courts had already found to be racially biased—and which a majority of the justices themselves later agreed were discriminatory. (It’s worth noting that courts have made it extremely difficult to prove racial gerrymandering in the first place, as even Chief Justice John Roberts acknowledged last June.)
Republicans in Alabama, for example, had been ordered to redraw a racially gerrymandered map by two lower federal courts prior to the 2022 elections. Still, conservative justices granted Alabama’s “emergency” petition, despite the fact that there was plenty of time to redraw the unlawful map, and allowed the state to use it in a February 2022 ruling that was unsigned and essentially unexplained.
There’s clear evidence that conservatives, acting in concert with courts that they’ve stacked with partisan judges, have effectively stolen elections in recent years.
A year later, the Supreme Court held that the map, which had been used in the 2022 elections by then, had in fact diluted the voting power of Black Alabamians. That decision came only after Alabama Republicans openly defied a Supreme Court order, actually diluting the Black vote even further in a subsequent map. Alabama’s map for 2024 does include a second district with a near-majority-Black voting population, which will likely add a Democratic House seat.
The Supreme Court made similar moves in 2022 to allow Louisiana to use a racially discriminatory electoral map, and lower courts followed its lead in other cases. All told, those unjustifiable rulings allowed Republicans to racially gerrymander districts representing seven House seats, transforming them into safe Republican districts.
Despite the 2023 Supreme Court ruling that ultimately unwound the racial gerrymander in Alabama, that pattern of tacit, yet fairly open, collusion continues today.
As things stand, voters in three states—South Carolina, Florida, and Utah—will likely go to the polls in November in districts that some courts have found to be illegally discriminatory against Black voters, according to a ProPublica report last month. The discriminatory South Carolina map was reinstated after the Supreme Court’s inaction. And the court also refused to block the adoption of a map that was found to discriminate against Latino communities in Washington state last month.
The fight over Louisiana’s electoral map is still ongoing: The Supreme Court has been asked by state officials to issue a ruling by today, May 15, to avoid leaving the state without a valid electoral map just months ahead of elections.
The case, Callais v. Landry, is essentially a reverse-racism suit brought by a group of self-described “non-black” Louisianans, who are arguing that their legislature broke the law when it complied with court orders to draw a map with two majority-minority districts, in order to remedy the anti-Black discrimination in its first map.
The group includes prominent white Republican politicians in the state, and they’re arguing that the new map is an affront to their “personal dignity,” and amounts to “affirmative action in redistricting,” as CNN reported on May 6.
Tracie Washington, who represents a group of Black plaintiffs that intervened in the case, told me she was taken aback by the plaintiffs’ position and language.
“For all intents and purposes, we have a group of white folks who are upset that they now have to be potentially represented by a Black person in Congress,” said Washington, an attorney with the Louisiana Justice Institute and visiting professor at the Southern University Law Center.
Even the state’s Republican leadership, including Attorney General Elizabeth Murrill and Gov. Jeff Landry, have backed the remedial map, along with groups like the ACLU and the NAACP Legal Defense Fund.
Still, an April 30 ruling in the case by two Trump-appointed judges in the Western District Court of Louisiana agreed that the new map amounts to reverse discrimination, saying race was the primary motivating factor. That ruling is of course preposterous on its face, not just because it ignores that legislators were complying with court orders, but because of the laughable holding that Louisiana Republicans specifically targeted and discriminated against white Louisianans.
As Louisiana’s own secretary of state put it, “the Legislature did not randomly wake up in a special session in January and decide to draw a second majority-Black district.”
Indeed, a lower district court and two unanimous appeals court panels had already held that the law requires Louisiana to adopt a map with two “Black-opportunity districts,” and had found that the state could in fact draw a second majority-minority district without focusing only on race by considering other traditional factors, like respect for political subdivisions (like parishes) and shared cultures.
The Western District court was also well aware that the remedial map the legislature drew was oddly shaped partly because lawmakers had other race-neutral, but partisan, interests: They wanted to ensure that certain Republican incumbents, including House Speaker Mike Johnson and House Majority Leader Steve Scalise, would keep their seats, according to testimony from multiple Louisiana state senators. (Rep. Garret Graves, who endorsed Gov. Landry’s opponent in a primary election, is the victim of this incumbency protection; under the new map, he would likely be tossed out of office.)
Moreover, and at a basic level, “nearly all of the plaintiffs in this case lack standing to allege this racial gerrymandering claim because they do not reside in District 6,” dissenting judge Carl E. Stewart said in the ruling.
Those kinds of indications of partisanship are rife throughout these cases, including those that have gone on to the Supreme Court. Of course, this kind of partisanship is evident in the Court’s recent rulings in other areas, as a number of other analyses have shown, including a May 12 NBC News report about Justice Samuel Alito’s partisanship, which is becoming more and more obvious by the day.
The Supreme Court has selectively delayed or issued quick rulings in a number of cases, and selectively deployed certain procedural holdings. But in almost every instance, the result was to grant more electoral power to white voters and Republicans, and to dilute voting power for all other Americans.
In the Alabama case, the Court issued a partial ruling that allowed the challenged (discriminatory) map to remain in place for the 2022 elections while the claims moved forward. Yet, just two years later, the Supreme Court has refused to let Louisiana keep its current, remedial (nondiscriminatory) map in place until the suit is all sorted out.
All things considered, these patterns are almost impossible to explain, other than through partisan favoritism.
Washington, with the Louisiana Justice Institute, told me she remains optimistic, despite background circumstances.
“It seems like, in order to be consistent” with its 2023 ruling in the Alabama case, “the Supreme Court would almost have to grant our request,” Washington said.
That said, perhaps the only thing that’s been consistent about the Supreme Court’s election jurisprudence in recent years is that its rulings help Republican candidates win elections.
We’ll see what happens in Louisiana, and other states, in 2024.
