Departing from its norm, the Supreme Court moved swiftly on Monday to let at least one Southern state redraw its congressional election map to give Republicans a chance to pick up an added seat in the U.S. House of Representatives. The Court may soon do the same for other states.
The Court last week put itself into the midst of a spreading wave of new partisan gerrymandering that started in the South but is beginning to spread widely. The Court did so by its historic decision last Wednesday severely narrowing a key federal voting rights law that for 40 years had protected minority voters’ chances to elect the candidates they prefer.
In response to the new decision, top state officials in Louisiana, where that case originated, already had begun moving to summon the state legislature into a special session to put the ruling into effect promptly, even though nearly 80,000 voters in the state have already cast their ballots in early voting for seats in Congress.
Ordinarily, if the Court had applied its own rules and its common practice, the ruling issued five days ago would not have been put into effect for another 27 days – the end of this month. Usually, after announcing almost all of its rulings, it allows that 32-day time lapse to give the side that lost a chance to ask the Justices to reconsider.
But on Monday afternoon, saying it had not heard from those who lost the new decision other than their request not to act swiftly, the Court put the decision into effect immediately. Only a single Justice noted a dissent; the ruling last week had come on a 6-to-3 vote.
Black voters, who lost the case last week, had asked the Court to postpone the decision’s effect until after all congressional elections are over this year – that is, after early November. The Court, however, opted not to do so.
Suddenly, the Court’s action had or soon will have these legal and political effects:
- It allowed state leaders in Louisiana to interrupt the already-in-progress primary voting, but only for congressional seats. The votes already cast in congressional races will not be counted, but the votes for other offices will be counted. A new round of voting will be allowed for congressional seats only.
- It allowed state leaders to summon a special session of their legislature this week to draw new congressional districts for the six seats that Louisiana now has in the U.S. House of Representatives. As a result, when voting resumes under new maps, tens of thousands of voters will have found themselves shifted into new districts, based upon their party affiliation (which, in Louisiana, has a practical correlation with race: white voters tend to vote Republican, black voters tend to vote Democratic.)
- Under early discussions in the state, one of the two districts that now have black Representatives who are Democrats will be drawn to give Republicans a victory there this year. (In last week’s Supreme Court decision, it ruled that prior creation of a second district in the state was unconstitutional, finding that it had been drawn for racial reasons, not partisan reasons. Monday’s action allows a new map to replace the rejected one, and prior Supreme Court precedent from 2019 (Rucho v. Common Cause) allows intentionally drawing election districts to give one party an advantage.)
- Aside from deviating from its normal rule on implementing a new ruling, Monday’s action contradicted a 20-year-old ruling by the Court in the case of Purcell v. Gonzalez. The so-called “Purcell principle” strongly discourages lower-court judges from issuing decisions that may affect voting already underway or soon to begin. The principle is designed to avoid confusing the voters about what is before them at election time. (The Supreme Court itself applied that principle last December in an important Texas congressional redistricting case, even though voting in that state was still at least three months away. The Texas redistricting dispute is the one that started a new series of partisan map-drawing across the nation. Monday’s order allows the Court itself to bypass the “Purcell principle,” with voting in Louisiana already occurring.)
- The Court must soon act on a request by state leaders in Alabama to issue a swift oer that would close a pending congressional redistricting case involving that state, allowing new line-drawimg there. The Republican governor there has already called for a special session of the legislature to craft a new partisan gerrymander.
Florida has just created new congressional maps favoring Republican candidates, and similar plans are pending or advancing in other states. Whether Democratic leaders who run other states will join in the new redistricting push is not yet clear, although California already has done so.
Wednesday’s order by the Court in the Louisiana case was not signed by any Justice, and no lineup of all of the Justices’ voting was disclosed. However, it would have required the votes of at least five Justices to approve such an order.
Three members of the Court, led by Justice Samuel A. Alito, Jr., the author of last week’s majority opinion, filed a two-page opinion supporting the new Louisiana order. The main reason for their separate writing, though, was to criticize Justice Ketanji Brown Jackson for her solo, four-page dissenting opinion sharply critiquing the new order.
Jackson faulted the new order for not following the Court’s normal practice and for rushing to get involved as a player in the new redistricting battles. She also wrote that the Court had allowed “principles [to] give way to power.”
Alito’s opinion said that Jackson’s dissent “lacks restraint.” His opinion was supported by Justices Neil M. Gorsuch and Clarence Thomas. Although the votes of the three others who supported Alito’s main opinion last Wednesday were not noted in the order, the move needed approval from at least two of these: Chief Justice John G. Roberts Jr., and Justices Amy Coney Barrett and Brett M. Kavanaugh.
No other Justice signed the Jackson dissenting opinion. Last week, Justice Elena Kagan wrote a lengthy dissenting opinion, joined by Justices Jackson and Sonia Sotomayor.
