I honestly do not know what kind of attack a state would have to launch against the voting rights of its Black citizens to make the current Supreme Court step in and stop it. I do not know what form of voter-suppression law, intimidation tactic, or redistricting map would be so racist that this court would strike it down. We are back to the Jim Crow era, not just in terms of the laws that states are passing against the franchise but also in how the Supreme Court refuses to enforce the constitutional amendments prohibiting apartheid. We have literally been here before, when the Supreme Court remained inert as the 14th and 15th Amendments were violated with impunity by any state with enough aggrieved whites to do so. All that’s missing is the violent enforcement of these racist voting rules… but we’ll see what happens when Black people still try to vote this fall.
The latest blow from the neo-Confederate Supreme Court came yesterday in the case of Merrill v. Milligan. At issue was the state of Alabama’s racist congressional maps, freshly gerrymandered to decrease the representation of Black voters. A district court ruled that the state of Alabama engaged in impermissible racial gerrymandering and invalidated the new map. But the Supreme Court decided, 5-4, to reinstate the racist maps, pending a full hearing, likely next fall. That means that the 2022 congressional elections in Alabama will take place under the new, racist maps.
Five of the conservatives voted to reinstate Alabama’s racist maps. (Chief Justice John Roberts voted with the liberals but indicated that he’d go back to the conservative side once he got into the merits of the case.) Only alleged attempted rapist Brett Kavanaugh, joined by Alito, bothered to explain his reasoning for reinstating the racist maps.
It would have been better if he hadn’t. It would have been better if he had just decided that Alabama’s maps were not racist and overturned the district court directly. Instead, Kavanaugh’s warped logic goes further and essentially cuts off any challenges to any racially gerrymandered maps through at least the 2022 midterms. That’s because he ruled that we are too close to an election to stop racist maps.
Kavanaugh cited Purcell v. Gonzales, a 2006 case that stands for the principle that courts should not change the rules of an election close to the election. Conservatives fell in love with Purcell in 2020, when they used it again and again to prevent states from making their elections more safe and more accessible during Covid outbreaks. But even those cases dealt with states’ trying to strap on Covid protections in August and September for elections slated to happen in November. We are in February. A person could get pregnant and, if they live in Texas, be forced to have a baby against their will between now and the general elections. For Kavanaugh to cite an impending election this far away from the election is ludicrous.
But the logic gets even worse than that. The Census was in 2020; Alabama wrangled out the new maps over the course of 2021 and released its new district maps on October 25, 2021—“earlier than expected,” according to some reports. The state was sued almost immediately, on November 15, 2021. There was no way to challenge Alabama’s racist maps faster than they were challenged in this case. When Kavanaugh says that the challenge is too close to the election, he means that literally any challenge to any new, racist state districting map cannot be heard until at least one election cycle has taken place under the racist maps.
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Put another way: Every single state now gets one purely racist districting map, free of any 14th or 15th Amendment concerns (or any worries about the 19th Amendment’s grant of suffrage to women or the 24th Amendment’s abolition of poll taxes), because any challenge to those unconstitutional maps will be deemed as too close to the elections they rig.
And that logic could be extended to literally any voter suppression law conservatives would like to cook up. If we are now in the penumbra of the 2022 elections, literally any racist law already on the books will be allowed to go forward by this Supreme Court.
It’s possible that not all of the conservatives agree with Kavanaugh or will apply his logic in the future. After all, Kavanaugh is bad at understanding how laws work, a point Justice Elena Kagan made to his face in her dissent. (She starts off a four-paragraph footnote with “Because Justice Kavanaugh” and then educates him.) But remember the alternatives here. Conservatives have lots of theories flying around for why racist disenfranchisement of Black voters is okay. Roberts (in Rucho v. Common Cause) ruled that political gerrymanders are always OK, and he could easily recast Alabama’s racism as a political map. Samuel Alito (in Brnovich v. DNC) ruled that a little bit of racism is OK when suppressing voting rights, and gave no limiting principle on that racism other than his personal tolerance for bigotry (which appears to be quite high). In the end, it doesn’t really matter why conservatives think that racist voter suppression is OK; it just matters that they do.
So, when I say that the conservatives on this court have now aligned themselves with the very worst courts that have propped up white supremacy throughout American history, this is why. I cannot name a map too racist for conservatives on the Supreme Court, because it has effectively said it will do nothing to stop any maps, no matter how racist they might be. I cannot name a voter suppression tactic too racist for conservatives, because they just determined that we are too close to an election for anything to be done.
This is not “like” Jim Crow—this is what courts in the Jim Crow era did. The Supreme Court between 1877 (when Rutherford B. Hayes ended Reconstruction) to 1954 (when Brown v. Board of Education was decided) did not have to come up with racist laws or racist interpretations of laws; it just had to prevent the federal Constitution from protecting Black people from the racist laws imposed by the states. That’s all it takes. Nobody has to instruct Alabama on how to be racist; all courts have to do is refuse to apply the 15th Amendment to Alabama, and it will figure out all on its own how to disenfranchise the Black people living there.
The court has decided that Black people do not get to participate fully in the midterms. That’s a wrap now. Good luck, white folks. Let us know what kind of country y’all decide to have. I’ll still be waiting on line to vote while white people bemoan the lack of Black turnout on TV.
