It’s been a rough year for lawyers tasked with defending Republican redistricting maps in court. At the beginning of this year, the conventional wisdom was that the U.S. Supreme Court would reverse two lower court victories achieved by Democrats and their progressive allies in early 2022. Then the seemingly unconventional happened.
First, in Allen v. Milligan, the Supreme Court upheld a lower court’s decision to strike down Alabama’s new congressional map for failing to comply with Section 2 of the Voting Rights Act (VRA). A three-judge panel had held that Alabama should have drawn two, rather than one, districts in which Black voters could elect their candidate of choice. To the surprise of many, the Supreme Court reaffirmed an important part of the VRA that requires the creation of minority opportunity districts in circumstances like those in Alabama.
Then, weeks later, the Court rejected the fringe independent state legislature theory in a redistricting case from North Carolina. Once again, the Court’s majority rejected the invitation from right-wing advocates to disregard decades of settled precedent by creating an entirely new legal doctrine.
In normal times, the Supreme Court handing two high profile losses to the GOP would have settled much of the remaining lower court docket related to redistricting. We don’t live in normal times.
Alabama’s Republican-controlled Legislature was unfazed by the Supreme Court’s decision or the prior federal court order requiring them to enact a new map with “two districts in which Black voters either comprise a voting-age majority or something very close.” Instead of complying with the order, they defied it.
This did not go unnoticed by the three-judge panel charged with implementing the Supreme Court’s decision. In a sweeping 222-page opinion and order issued on Tuesday, the court excoriated Alabama for “not even nurture[ing] the ambition to provide the required remedy.”
We are not aware of any other case in which a state legislature — faced with a federal court order declaring that its electoral plan unlawfully dilutes minority votes and requiring a plan that provides an additional opportunity district — responded with a plan that the state concedes does not provide that district.
The court in Alabama is not alone. In neighboring Louisiana, Republicans are following a nearly identical script. They too drew a congressional map that violates Section 2 of the VRA. They too thought the Supreme Court would rescue them from having to comply with this landmark law. And now, after the Supreme Court’s decision in Allen, they are also trying to escape the law’s requirement that they draw a second Black-opportunity district. Like Alabama, Louisiana seeks to glide past prior court rulings in the case and past the Supreme Court’s decision in Allen.
A nearly identical set of facts (and laws) are playing out this week in a federal courtroom in Georgia. Once again, the Republican-led Legislature in Georgia drew a new congressional map that is being challenged for failing to create an additional Black opportunity district in the Atlanta region. And again, the court’s preliminary ruling suggests that the state will lose in a blaze of defiance.
Sadly, Republican extremism in redistricting is not limited to violations of the VRA. Last week, a state judge in Florida struck down the congressional map that Gov. Ron DeSantis (R) had insisted his GOP-controlled Legislature enact. The court found that the new map violated the Florida Constitution by diminishing minority voters’ ability to elect their candidate of choice. In words strikingly similar to the court in Alabama, the Florida judge added that “[a]t the hearing on the parties’ outstanding legal issues, Defendants Florida House and Florida Senate conceded as much.”
The most bizarrely lawless spectacle is taking place in Wisconsin where the Republican-controlled Legislature is threatening to impeach a newly elected state Supreme Court justice before she even decides a single case. The reason? Because one of the first cases on the court’s docket involves a challenge to gerrymandered state legislative maps and the new justice is seen as a potential pivotal vote to strike them down.
In many ways, redistricting is the most political of all acts a legislature must undertake. The movement of a single line, the zig and zag on a map creates political winners and losers. But that is why the law is so important. It constrains the worst impulse of political actors.
In normal times, the current lawlessness of Republican state legislatures would be a scandal akin to George Wallace standing in the schoolhouse doors. But, again, these are not normal times. The GOP of today, infused by former President Donald Trump, views following the law as a weakness and complying with court orders as optional. In a party that celebrates an indicted candidate for being indicted, getting called out for preventing Black voters from having legal districts is a badge of honor.
With each of these rulings — many before Republican appointed judges — the GOP and their supporters seem bewildered that they keep losing. They seem shocked that courts apply the law. Republican politicians have become so accustomed to hiring lawyers like themselves — willing to debase their professional reputations — that they cannot understand when judges won’t follow suit.
This is not to suggest that the courts are perfect. They are not. Far too often, the conservative Supreme Court has ignored the plight of those seeking equal voting rights, free elections and fair districts. But even as the judiciary falls short of our expectations, the Republican Party’s descent leads even further into the depths of lawlessness. There is no place where that dichotomy is more stark than in the GOP’s increasing desperation around redistricting.