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 in terms of 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 Fourteenth and Fifteenth 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 Gorsuch, 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 notracist 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 the case 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, 202—“earlier than expected,” according to some reports. The state was south 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.