The Supreme Court has been issuing its end of session decisions recently and one of them, Allen v. Mulligan, upheld a key provision of the Voting Rights Act that prohibits election district maps that are drawn to dilute minority voting power. The Court, prior to the 2022 elections, blocked the redrawing of districts despite lower courts’ rulings that the districts were unconstitutional. This left districts in place for the election in seven or more states that have now been deemed unconstitutional. This probably delivered at least seven seats to the Republicans that otherwise would have likely gone to Democrats. The shift of five seats from Republicans to Democrats would have changed the control of the House.
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The Supreme Court has been issuing its end of session decisions recently and they’ve been garnering a lot of attention in the media because some of them have far reaching effects. One of the decisions, Allen v. Mulligan, upheld a key provision of the Voting Rights Act and was heralded as a bit of a surprise because other relatively recent Supreme Court decisions had gutted most of the Voting Rights Act. This decision upheld the section of the Act that prohibits election district maps that are drawn to dilute minority voting power.
Although Allen v. Mulligan has been reported as a very important decision with far reaching implications, the monumental effect of the original ruling in the case, before the 2022 elections, has not been widely reported. [1]
First, a little background on this case and the underlying issue of racial gerrymandering of congressional districts. The Allen v. Mulligan decision reinstates a lower court ruling that will require Alabama to redraw its congressional districts due to the racial gerrymandering of the current districts. A less noticed decision in a case known as Ardoin v. Robinson will similarly require Louisiana to redraw its congressional districts. [2] These two cases set a precedent that will affect racially gerrymandered congressional district maps in Florida, Georgia, Ohio, Texas, and South Carolina, and perhaps elsewhere.
In Alabama, there are seven congressional districts. Twenty-seven percent of the population is Black (and four percent is in other non-white categories), but by packing as many Black voters into one district as possible and splitting up the other Black voters among the other districts, there is only one Black-majority district in the state. In Louisiana, there are six congressional districts. A third of the population is Black, but, again, by packing as many Black voters into one district as possible and splitting up the other Black voters among the other districts, there is only one Black-majority district in the state.
Prior to the 2022 elections, the Supreme Court, through “shadow docket” rulings in cases from Alabama (Allen v. Mulligan) and Louisiana (Ardoin v. Robinson), temporarily blocked the redrawing of districts based on lower courts’ rulings that the state’s congressional districts were unconstitutionally racially gerrymandered. This meant that the 2022 congressional elections used congressional districts in seven or more states that were unconstitutionally gerrymandered. (The “shadow docket” refers to rulings the Supreme Court makes without hearing arguments or soliciting input. The Court issues its “shadow docket” rulings without presenting any rationale for its decision. So, in these “shadow docket” cases, the Court provided “emergency relief” to Louisiana and Alabama to use congressional district maps in the 2022 elections that a lower court had ruled were illegal. See previous posts here and here on the Supreme Court’s use of the “shadow docket.)
Each of the seven (or more) states that had unconstitutionally racially gerrymandered districts would have most likely had at least one more Democratic leaning congressional district if the lower court rulings had not been blocked by the Supreme Court. Therefore, it’s highly likely that without the Supreme Court’s interference the Democratic Party would have had control of the U.S. House of Representatives rather than Republicans. After the election, there were 222 Republicans and 213 Democrats in the House. A shift of five seats would have given the Democrats a 218 to 217 majority. A shift in control of the House to Democrats would have had a monumental effect on policy making and the whole tenor of politics in the federal government.
Whether knowingly or not, the Supreme Court’s actions put a heavy thumb on the scales of the 2022 congressional elections. Most probably, the Court’s actions had the dramatic effect of determining who had the majority in the House of Representatives. Ultimately, the Court took away the constitutional right of voters in these states to a fair 2022 election. Furthermore, it did so without hearing arguments or soliciting briefs on the merits of the case and without even explaining its reasoning. [3]
P.S. The latest Supreme Court ethics scandals involve Justice Alito. He took an expensive fishing trip to Alaska, including a flight on a private jet, that was funded by a Republican billionaire and major campaign donor whose hedge fund has had multiple cases before the Court. Alito did not disclose these gifts as required and did not recuse himself on the cases. In addition, Alito’s wife had a business interest in a firm that was affected by a case before the Court from which Alito did not recuse himself. [4] (See previous posts here, here, and here about ethical scandals of Supreme Court justices.)
[1] Thompson, M. W., 6/13/23, “Voting maps throughout the deep South may be redrawn after surprise Supreme Court ruling,” ProPublica (https://www.propublica.org/article/scotus-voting-rights-act-alabama-redistricting-allen-milligan)
[2] Wilkins, B., 6/26/23. “‘Big win for democracy’ as SCOTUS OKs redrawing of rigged Louisiana congressional map,” Common Dreams (https://www.commondreams.org/news/louisiana-gerrymandering)
[3] Editorial, 6/13/23, “The shadow docket does clear harm in voting rights case,” The Boston Globe
[4] Wilkins, B., 6/26/23, “Wife’s oil and gas leasing deal raises new ethics concerns about Justice Alito,” Common Dreams (https://www.commondreams.org/news/alito)
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