SCOTUS: Merrill v. Milligan (2022) - Supreme Court decides that Alabama is allowed to dilute the Black vote
On February 7, 2022 the Supreme Court of the United States in a 5-4 vote in Merrill v Milligan stayed the decisions of two lower court decisions blocking an Alabama law that was determined to violate the Voting Rights Act by diluting the vote of Black voters. Those two lower court cases are Evan Milligan, et al. v. John Merrill, et al., No. 2:21-cv-1530 (N.D. Ala.), and Marcus Caster, et al. v. John Merrill, et al., No. 2:21-cv-1536 (N.D. Ala.). Both cases were decided on January 24th, 2022 which resulted in a preliminary injunction (i.e., blocking the implementation or execution of the law), and on January 27th, 2022 stays for both decisions were denied.
Thomas, Alito, Kavanaugh, Gorsuch, and Barret voted in favor of the stay while Roberts, Kagan, Sotomayor, and Breyer voted against. Kavanaugh, joined by Alito, filed a concurrence. Roberts filed a dissent, and Kagan, joined by Sotomayor and Breyer filed a dissent as well.
What’s particularly striking about the court’s decision to stay the lower court precedent is the fact that there seems to be no denial in how the lower court came to their decision.
Chief Justice John Roberts was clear about the correctness of the district court’s decision [emphasis added]:
“…the District Court properly applied existing law in an extensive opinion with no apparent errors for our correction. The governing standard for vote dilution claims under section 2 of the Voting Rights Act is set forth in Thornburg v. Gingles, 478 U. S. 30 (1986), which requires “the minority group . . . to demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single-member district.” Id., at 50. The District Court reviewed the submissions of the plaintiffs’ experts and explained at length the factbound bases for its conclusion that the plaintiffs had made that showing”
Justice Kagan expresses in similar, if not more precise terms, that:
“After considering a massive factual record, developed over seven days of testimony, and reviewing more than 1,000 pages of briefing, a three-judge District Court held that Alabama’s redistricting plan violated Section 2 of the Voting Rights Act (VRA). The District Court (including two judges from the State) found that the plan unlawfully diluted the votes of the State’s Black population, and ordered the State to devise a new plan for the 2022 elections.”
The principle difference of opinion between Kagan and Kavanaugh are thus. Kagan (and Roberts), believe that the stay was inappropriate due to the fact that the district court appropriately applied the law, as evidenced by a very thorough, factual, and extensive opinion outlining these three qualities as such. Kavanaugh is clear about his perspective that the thoroughness of the district court’s decision is irrelevant by stating:
“…the fact that the District Court here issued a lengthy opinion after considering a substantial record is the starting point, not the ending point, for our analysis of whether to grant a stay.”
Moreover, Kavanaugh simultaneously proposed the idea that the plaintiffs did not have a clear victory, but rather a close one, and that regardless of that possibility he in fact has no opinion on the merits at the present, quote:
“Contrary to the dissent’s mistaken rhetoric, I take no position at this time on the ultimate merits of the parties’ underlying legal dispute. And I need not do so until the Court receives full briefing, holds oral argument, and engages in our usual extensive internal deliberations.”
Kagan and Kavanaugh are both right with respect to how this decision was made.
Kagan points out that in general, a request for a stay is considered an “extraordinary” judicial act and requires that the court determine whether the applicant is likely to succeed on the merits, and whether the likelihood of irreparable harm to the applicant, the balance of equities, and the public interest weigh in favor of granting a stay. This is not disputed in this decision.
Kavanaugh however correctly points to the Purcell decision as the judicial precedent, that, in his mind, requires the court to grant the stay.
“As the Court has often indicated, however, that traditional test for a stay does not apply (at least not in the same way) in election cases when a lower court has issued an injunction of a state’s election law in the period close to an election. See Purcell, 549 U. S. 1. This Court has repeatedly stated that federal courts ordinarily should not enjoin a state’s election laws in the period close to an election, and this Court in turn has often stayed lower federal court injunctions that contravened that principle.
…
That principle—known as the Purcell principle—reflects a bedrock tenet of election law: When an election is close at hand, the rules of the road must be clear and settled. Late judicial tinkering with election laws can lead to disruption and to unanticipated and unfair consequences for candidates, political parties, and voters, among others. It is one thing for a State on its own to toy with its election laws close to a State’s elections. But it is quite another thing for a federal court to swoop in and re-do a State’s election laws in the period close to an election.”
Kagan does not deny the Purcell principle, but instead flatly rejects its application to the present circumstances. Unlike in Purcell, which was decided 15-days before election day, the present case was decided more than nine months before election day, four months before primaries, and two months before absentee early voting which Alabama can change.
Kavanaugh contends that:
“The District Court’s order would require heroic efforts by those state and local authorities in the next few weeks— and even heroic efforts likely would not be enough to avoid chaos and confusion.”
And concluded from there that
“…the plaintiffs have not established that the changes are feasible without significant cost, confusion, or hardship.”
While Kavanaugh offered a “relaxed” application of Purcell to apply, he also indicated that the plaintiffs were unable to satisfy even that. This result would be more surprising if Kavanaugh didn’t appear to be making things up out of thin air. On the one hand, he implied that the Purcell doctrine could be interpreted as being an absolute judicial blockade against any election interference.
To Kavanaugh’s credit, he asserts in a footnote that the proximity of a judicial stay and an election depends on the nature of the law being affected. Kagan is clear in her perspective thought that nine months is entirely feasible, and that the current districts were created and approved within less than seven days in the Alabama legislature.
What’s more is the fact that the State’s own witness alleged that he could create an entirely new map within the span of an afternoon, and conceded during the trial the plaintiff’s eleven alternatives met state and federal standards, and were likely better than those standards.
In the unanimous District Court decision, it was stated:
“We are confident that the Legislature can accomplish its task: the Legislature enacted the Plan in a matter of days last fall; the Legislature has been on notice since at least the time that this litigation was commenced months ago (and arguably earlier) that a new map might be necessary; the Legislature already has access to an experienced cartographer; the Legislature has not just one or two, but at least eleven illustrative remedial plans to consult, one of which pairs no incumbents; and Mr. Cooper demonstrated that he can draw a draft plan in part of an afternoon. Indeed, there is a plethora of experts in these very cases whom the Legislature could consult. Further, there is precedent for such a schedule.”
Yet, Kavanaugh determined the it would require substantial heroics for Alabama to pull off such a feat - despite the State agreeing to and expressing that such a remedy was feasible - and as such agreed with a stay.
In the grand scheme of things, what happened is that the State of Alabama lost its case in an overwhelming show of negligence not just on the part of the legislature, but also by its own legal team. After losing all three cases brought forth alleging a violation of the Voting Rights Act, they requested a stay for two (as the third dropped their case), and lost those. The lower court decision was rendered on January 28th, and Alabama was given a deadline of February 11th to adopt a new district plan. Rather than meet this demand, they appealed to the Supreme Court with the same arguments made in the lower proceedings and a misleading interpretation of the decisions rendered.
What’s worse, is that in Kavanaugh’s watered down version of the Purcell doctrine, he signaled to the idea that the plaintiff’s were not guaranteed to win - despite the 2000-age document confirming what the plaintiffs called a “text book example of a Section 2 VRA violation” and seemingly without having any perspective on the merits. In only highlighting that the plaintiff’s failed to indicate that the aforementioned remedy was feasible, he skipped over the other two variables in his “compromised” assessment, being that: the plaintiffs brought their action within a reasonable amount of time, and that they would suffer irreparable harm absent the injunction.
In sum: yes the plaintiff’s sought a remedy within a reasonable amount of time. Almost immediately, in fact, and the lower court had not only rendered a decision, but denied two stays, within less than ninety days. Yes, the plaintiff’s - Black Alabamians - will suffer irreparable harm because their absolute right to enfranchisement will be diluted in a state where they may have the possibility of electing only one person of their choices despite being nearly a third of the population. Yes, they’ll win on the merits (more than likely); and Yes, it’s feasible but it’ll be challenging.
But, what happened instead is that the conservative members of the Supreme Court decided that Black Alabamian’s votes aren’t the same as white voters in equity, or reality, because it’ll be too hard as evidenced by the fact that Alabama said it would be, even though they have demonstrated already that it wouldn’t be.
The Supreme Court’s decision is abhorrent. While it did not create new law, it signaled to other states that they merely have have to disagree with the decision in order to succeed in their efforts at the highest court in the land.
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