Pearls and Irritations

Democrats had a surprisingly good election night last week. They held on to a number of critical Senate seats, won key gubernatorial races, and, shockingly still, had a slight avenue to hold on to control of the House of Representatives, despite historic headwinds and virtually no margin for error. Still, Republicans are currently forecast to win control of the House by a small margin, carrying the chamber by one to 10 seats. If that projection holds, it will be no overstatement to say that the conservative majority of the U.S. Supreme Court took control of the House of Representatives for Republicans.

The reason is simple: In February, by a 5–4 vote, SCOTUS suspended the Voting Rights Act’s ban on racial gerrymandering. For decades, the VRA prohibited states from drawing congressional maps that dilute the votes of racial minorities by depriving them of a fair opportunity to elect their preferred representatives. Sensing an ally in the judiciary, red states brazenly violated this principle during the latest round of redistricting. In states like Alabama, Florida, Georgia, Louisiana, South Carolina, and Texas, Republican lawmakers packed racial minorities into as few districts as possible. These lawmakers then carved up remaining minority communities, distributing them throughout majority-white districts.

This tactic is the exact kind of racial gerrymandering that the VRA was designed to prevent, and the courts have consistently blocked racial gerrymanders from happening every cycle. The only question was whether the Supreme Court, with its newly confirmed far-right Supermajority, would actually enforce the VRA’s previous guarantees.

An early test came when voting rights advocates filed a lawsuit against Alabama’s new congressional map, which packed most Black residents into a single, sprawling district, then sprinkled the rest throughout overwhelmingly white districts. Again: It’s hard to think of a clearer example of illegal racist redistricting. The map was so egregious that a three-judge district court with two Donald Trump appointees struck it down in January, writing a meticulous 225-page opinion rigorously applying the VRA. (The case is called Merrill v. Milligan.) Alabama promptly asked the Supreme Court to halt the decision.

On Feb. 7, by a 5–4 vote, SCOTUS agreed, issuing a stay that ensured the gerrymandered map would remain in effect for the midterms. The majority did not offer a single sentence of explanation or analysis. Even Chief Justice John Roberts, an avowed foe of the VRA, felt compelled to dissent, noting that the district court “properly applied existing law in an extensive opinion with no apparent errors for our correction.” Justice Brett Kavanaugh, joined by Justice Samuel Alito, insisted that it was simply too close to the election for a court to change the map. (At that point, the Alabama primary was more than three months away, and the general election was nine months away.) This claim significantly expanded the Purcell principle, which cautions against federal courts’ changing voting rules on the eve of an election.

Milligan had a sweeping impact. A federal judge in Georgia found that the state had drawn a similar racial gerrymander, but it declined to impose new maps, explaining that Milligan implied courts had to wait until after the midterms. A three-judge district court refused to block Texas’ new congressional map, which reduced Black and Latino representation, even though the Black and Latino populations grew substantially over the previous decade. A federal judge in South Carolina similarly slow-walked a suit over the state’s racial gerrymander of its congressional districts. And when a federal judge dared to invalidate Louisiana’s racial gerrymander, the Supreme Court reinstated it—just in case its intervention in Milligan wasn’t clear enough.

Because voting remains racially polarised in these states, the elimination of districts with a large population of racial minorities means the elimination of Democratic districts. That’s why carving up Black, Hispanic, and Native communities is a time-honoured strategy for diluting an opposing party’s support, a practice of Jim Crow–era Democrats that has since become a go-to move for Republicans. It’s impossible to know exactly how many seats Democrats would have won if the judiciary had actually enforced the VRA. But it’s possible to estimate, based on the courts’ analysis of the existing map and alternative models. Democrats lost one seat in Alabama and Louisiana, one to two seats in Georgia, and at least two seats in Florida and Texas. They also lost any real chance of competing in South Carolina’s first congressional district. Under a conservative estimate, then, the Supreme Court’s suspension of the VRA lost Democrats seven seats. However, given the party’s strong showing on Tuesday (except in Florida), eight to 10 seats is a more realistic estimate.

Given that Republicans’ margin of victory—in the likely event that they hold on—may well be seven or fewer seats, it appears that SCOTUS has handed the party control of the House.

There are, of course, more places to point the finger. Most notably, New York’s highest court—stacked with Andrew Cuomo’s conservative appointees—imposed a Republican gerrymander that gave GOP candidates five or more seats than they would have won under the Legislature’s original map (which was, in fairness, an extreme Democratic gerrymander). Florida’s Supreme Court also deserves special blame for failing to enforce not just the VRA but also its state constitution, which voters amended in 2010 to strictly forbid racial and partisan gerrymandering, beyond what federal law requires.

But these decisions only illustrate the broader point: Conservative courts, from SCOTUS to state judges, played a critical role in potentially dragging the GOP—an unpopular party that would clearly lose in fairly contested elections—over the finish line. They bolstered the party’s chances in a largely dismal night for Republicans, likely making the difference between a win and a loss in the House. The 2022 midterms confirmed a new reality about American congressional elections: Whoever controls the courts could well choose the winners.

First published in SLATE Nov 9 2022

Share and Enjoy !

SHARE TWEET SHARE COPY EMAIL PRINT