The following report by Amy Howe was first published in SCOTUSblog, and is republished according to SCOTUSblog republishing guidelines. 

The Supreme Court on Monday allowed Alabama to implement a redistricting plan that is being challenged as illegal racial gerrymandering. A lower court ruled last month that the state’s new congressional map likely violates the Voting Rights Act, and it ordered the state to draw a new map. But the Supreme Court in a 5-4 decision put the lower court’s ruling on hold, effectively allowing Alabama to proceed with its preferred map as it prepares for primary elections in May.

Alabama created the redistricting plan after the 2020 census for the state’s seven seats in the House of Representatives. One of the seven districts in the plan is a majority-Black district. Registered voters, along with the Alabama chapter of the NAACP and Greater Birmingham Ministries, a multifaith community organization, went to federal court to challenge the map. They argued that the state had illegally packed many Black voters into a single district while dispersing other clusters of Black voters across multiple districts. The effect of the map, according to the challengers, is to minimize the number of districts in which Black voters can elect their chosen candidates.

On Jan. 24, a three-judge district court – made up of two district judges appointed by President Donald Trump and a court of appeals judge appointed by President Bill Clinton – ordered the state to draw a new map. The court agreed with the challengers that the plan likely violates Section 2 of the Voting Rights Act, which bans racial discrimination in voting policies. The court explained that the state’s legislature should have the first chance to draw a redistricting plan that includes two majority-Black districts, rather than just one, and it gave the state two weeks to do so. But if the legislature can’t get the job done in time, the court continued, it would hire an expert to draw a new and improved map.

On Jan. 27, the three-judge court turned down the state’s plea to put its order on hold while the state appealed. Calling the state’s request “effectively an unsupported motion for reconsideration,” the court characterized the case as a “straightforward Section Two case, not a legal unicorn.” And it stressed that its decision to grant a preliminary injunction “rests on an extremely robust body of evidence” created by a seven-day hearing featuring testimony from 17 witnesses and over 1,000 pages of briefing. The question of whether the challengers are “substantially likely to succeed on the merits of their Section Two claims” is not, the court concluded, “a close one.”

The state came to the Supreme Court the next day, asking the justices to freeze the district court’s order while it appeals. In a brief order on Monday, the court granted that request and set the dispute for oral argument sometime next fall.

Justice Elena Kagan wrote a 12-page dissent that was joined by Justices Stephen Breyer and Sonia Sotomayor. She emphasized that normally a litigant asks the Supreme Court to freeze the lower-court order because it believes that the lower court got the law wrong. But here, she said, “[a]ccepting Alabama’s contentions would rewrite decades of this Court’s precedents about Section 2 of the Voting Rights Act.” If the court is going to make these changes, she stressed, it should do so after full briefing and oral argument, not on the so-called “shadow docket.” In Kagan’s view, the district court properly applied existing law. Putting its ruling on hold, she wrote, “forces black Alabamians to suffer what under that law is clear vote dilution.”

Chief Justice John Roberts also dissented from the court’s decision to put the lower court’s order on hold, although he did not join Kagan’s opinion. Instead, Roberts noted the uncertainty that surrounds what litigants must currently show for a vote-dilution claim. To clarify the law, Roberts wrote, he would hear oral argument in this dispute over the map, but he would not put the district court’s order on hold because it is, in his view, consistent with current voting-rights laws. Therefore, he concluded, the district court’s analysis should govern the 2022 election, while “subsequent elections would be governed by” the Supreme Court’s ruling in this case.

Justice Brett Kavanaugh responded to Kagan’s dissent with his own concurring opinion, which was joined by Justice Samuel Alito. Kavanaugh pushed back against Kagan’s suggestion that Monday’s order changes voting rights law. Instead, he countered, it simply puts the district court’s order on hold until the Supreme Court can review it.

Freezing the district court’s order is also consistent, Kavanaugh added, with the election-law doctrine known as the Purcell principle – the idea that federal courts should not change state election rules shortly before an election. “Running elections statewide is extraordinarily complicated and difficult,” Kavanaugh observed. The district court’s order, he wrote, “would require heroic efforts by” election officials “in the next few weeks – and even heroic efforts likely would not be enough to avoid chaos and confusion.”

Kagan in turn disputed Kavanaugh’s contention that it was too late to require Alabama to redraw its maps. The Alabama legislature, she noted, enacted the current map in less than a week and can move quickly again if it wants to. But in any event, she continued, the state’s primary is still four months away, while the general election is nearly nine months away.

This article was originally published at Howe on the Court.

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