A bitterly divided Supreme Court on Monday upheld the redrawing of congressional and state legislative maps in Texas. The decision reversed earlier court findings that intentional racial discrimination had infected the way that some statehouse and congressional districts were drawn — and came five years to the day after the high court struck down a key provision of the Voting Rights Act.
"Our legislative maps are legal"
The Texas decision comes in a case that has lasted so long and is so complicated that even election experts find it daunting to discuss. The case has pinged and ponged between two separate three-judge federal courts and the U.S. Supreme Court.
The bottom line, though, is that even though the lower court in Texas ruled that districts in and around the state's biggest cities had been drawn to minimize minority voting power, the Supreme Court only agreed with the lower court about one state legislative district, in Fort Worth.
As the state's Republican Gov. Greg Abbott gleefully tweeted Monday, "Our legislative maps are legal. Democrats lost their redistricting & Voter ID claims."
A thumb on the scale
If the ruling were just about Texas, it would be important, but not huge. The 5-4 decision, however, could have major repercussions.
Five years ago, when the court struck down a key provision of the 1965 Voting Rights Act by a similar 5-4 split, Chief Justice John Roberts downplayed the effects of the decision. Back then, he noted that there were many other provisions of the law that gave minority voters the right to sue if their voting rights were minimized.
But election expert Rick Hasen of University of California Irvine says those promises ring hollow after Monday's decision. "The court today seems to minimize the chances that these remedies are going to be effective in future cases," he said.
Calling the decision "bold" and "audacious," Hasen says that it will undoubtedly enable more suppression of minority votes. And he says the language of the decision would seem to make it far more difficult to punish a recalcitrant state by putting it back under federal supervision for the next decade — a Voting Rights Act provision the Supreme Court left intact five years ago.
"This decision is going to make it very, very difficult to put any state back under federal preclearance ... by setting a standard that puts the thumb on the scale that favors states, by saying you have to presume the good faith of the legislature," Hasen added.
Loyola professor Justin Levitt agreed, saying "What any other state can take from today's decision is, 'If I intend to discriminate, a court may nip and tuck a bit, but they're not going to undo what I've done wholesale.' "
The decision, written by Justice Samuel Alito, overruled the lower court's findings that all of the districts in question were drawn to suppress the minority vote. Alito said the lower court used the wrong standard in evaluating the districts — that it should have presumed the state acted in good faith, rather than assuming that the new district lines were an extension of previous racial gerrymandering.
Justices Clarence Thomas and Neil Gorsuch concurred in the decision. Expressing what Hasen called a radical position, they asserted that the Voting Rights Act does not apply to redistricting at all.
Justice Sonia Sotomayor wrote a 46-page dissent lambasting the majority on behalf of the court's four liberals. The majority's "disregard for both precedent and fact comes at serious costs to our democracy," she said. "It means that after years of litigation and undeniable proof of intentional discrimination, minority voters in Texas ... will continue to be underrepresented in the political process."
Even though minorities now constitute a majority of the Texas population, she said, minority voters will cast their ballots this year, and in 2020, knowing that their "vote has been burdened by the manipulation of district lines specifically designed to target their communities and minimize their political will."
NYU law professor Richard Pildes noted that Monday's opinions were in stark contrast to others this term. "The tone in most of the opinions, dissents and majorities, is on the whole very tempered this term," he said, but the language in both the ruling and dissent on Monday was "much edgier."
The influence of past discrimination
Pildes and Levitt also suggested that the forgiving standard adopted by the conservative court majority is a bad indicator for those challenging the Trump travel ban.
As Pildes put it, one of the key questions of the travel ban case is whether past statements made by President Trump, which earlier courts have found to be discriminatory, "carry over in some significant way to reviewing the legality of the order that's now before the court."
"The issue at the heart of both [the] redistricting case and the travel ban case is the lingering impact of prior discrimination on something you do a few months later," Levitt said. "And the court clearly was pretty hostile to drawing continuing implications about the motives of a state government entity based on what it had done a short time earlier. And I think that is a foreboding omen for the travel ban case."