Wednesday's civil rights "victory" at SCOTUS comes with caveats

A Louisiana congressional map with two majority-Black districts will be used in 2024. The SCOTUS conservatives, however, used reasoning urged by the state's GOP leaders.

The U.S. Supreme Court on Wednesday issued a ruling whose result will be that Louisiana uses a congressional map in this election that contains two majority-Black districts.

It was, Cook Political Report’s Dave Wasserman wrote, “a victory for Dems/civil rights groups.” And, on its face, it was. The map that will now be used for the upcoming election, passed as S.B. 8, was enacted as the result of earlier litigation where those civil rights groups successfully challenged an earlier map as violating Section 2 of the Voting Rights Act by diluting the votes of Black voters in the state.

In that sense, Wasserman is right.

But, the legal outcome of Wednesday — if you peer just a bit below that surface — is more complicated. And the consequences, also, could be less of a “victory” for those “Dems/civil rights groups.”

In Wednesday’s order — technically issuing a stay of a district court ruling that had blocked the use of the S.B. 8 map — the three liberal justices would not have granted a stay. Yes, the conservative majority ordered the map with two majority-Black districts to be used, and the liberals would have let the district court’s ruling stand.

---

What is this, what does it mean, and why did it happen?

The case before the justices this week was not the Voting Rights Act case that those challengers brought. It was, instead, the result of another case — an equal protection challenge alleging that the second majority-Black district in the S.B. 8 map was an unconstitutional racial gerrymander. In that follow-on case, a three-judge district court agreed, ruling that the S.B. 8 map, in attempting to remedy the VRA violation essentially went too far and violated the Equal Protection Clause.

That, in and of itself, could cause problems for civil rights groups seeking to enforce what remains of the VRA after the Roberts Court gutted the preclearance provisions in Sections 4 and 5 of the VRA in 2013’s Shelby County v. Holder, necessitating reliance on Section 2.

But, that isn’t the only complication faced by those seeking to enforce civil rights laws in this treacherous era. The “Dems/civil rights groups” for whom Wasserman wrote that Wednesday’s order was a victory also were facing a modern Scylla and Charybdis, the dangers faced by the seafaring Odysseus, as they approached the Supreme Court.

Faced with the district court’s ruling, one possibility was the expansion of the so-called Purcell principle, named after a 2006 Supreme Court decision, that limits court intervention in election decisions too close to an election. On the other hand, civil rights groups — in another case pending at the Supreme Court (Alexander v. South Carolina State Conference of the NAACP) — are asking the justices to respect district court findings that South Carolina Republicans created a racial gerrymander violating the Equal Protection Clause.

That complication is seen is the original VRA challengers’ request that the Supreme Court issue a stay of the injunction of the S.B. 8 map. It is very strongly focused on the need to give lawmakers “breathing room” to remedy Section 2 VRA violations with new maps like the S.B. 8 map.

Louisiana’s Republican secretary of state, represented by Louisiana’s Republican attorney general also asked for a stay of the district court’s ruling — something missing from the headlines on Wednesday. The filling from Attorney General Elizabeth Murrill, however, looked very different from that of the civil rights VRA challengers.

“This case screams for a Purcell stay,” Murrill and her lawyers wrote, later stating, “This is a textbook case for a Purcell stay.” And, finally, “If Purcell means anything, it requires a stay here.” Murrill also sought a ruling by May 15, which is, she wrote, “the date by which the Louisiana Secretary of State needs to begin implementing a congressional map for the 2024 elections.”

The conservative Supreme Court majority went along with Louisiana’s Republican leaders — and on their timeline.

The substantive portion of Wednesday’s one-paragraph order from the Supreme Court was simple:

The applications for stay presented to Justice Alito and by him referred to the Court are granted. See Purcell v. Gonzalez, 549 U. S. 1 (2006).

That was it. The rest of the paragraph was about when and under what circumstances the ruling would remain in effect.

---

In response, Justices Sonia Sotomayor and Elena Kagan simply noted that they would not have granted the stay, so, though we know their vote, we do not know the logic behind their decision.

Justice Ketanji Brown Jackson, however, did write a two-page dissent explaining her substantial, multiple concerns here — concerns that, at least in parts, likely animated her fellow liberal appointees’ votes. Her decision to write, as short as it is, is not only helpful for making clear her thinking but also important as part of a need for the liberal justices continually to lay out their vision for approaching this moment.

First things first. Jackson did not want this case to be used to expand the use of Purcell to further limit challenges to election-related decisions:

In my view, Purcell has no role to play here. There is little risk of voter confusion from a new map being imposed this far out from the November election. In fact, we have often denied stays of redistricting orders issued as close or closer to an election.

But, Jackson makes clear, more is going on here, at least in her view. There is, she explained, a way of getting through the modern Scylla and Charybdis.

In addition to not seeing a Purcell problem here, Jackson also reinforced the argument of the civil rights groups in the Alexander case, writing:

The three-judge District Court in this action, after holding a full merits trial and finding the current map unconstitutional, scheduled the imposition of a remedial map for no later than June 4. In doing so, it rejected the State’s argument that the real deadline for settling on a map is May 15. The State now renews those arguments before us, asserting that waiting any longer will result in irreparable harm, namely, “election chaos.” … The Court appears to credit the State’s arguments, [citing Purcell].

This, I think, is key to understanding this vote from the liberals. The district court’s decision in the equal protection challenge to the S.B. 8 map did not invalidate the earlier VRA ruling. It made clear the legislature — or the court — would have to go back to the drawing board and fix the equal protection problems with the S.B. 8 map, in addition to the VRA problems with the earlier map. In a scheduling order, the district court had set a deadline for the legislature to act by June 3 — with the court having planned to issue its own map on June 4 if the legislature didn’t do so.

In other words, and completely consistent with the civil rights group’s arguments in Alexander, Jackson also believed the district court’s ruling should have been respected here — at least on this timeline and in this posture.

Once all of that is put together, and as Jackson makes clear in a footnote addressing the original VRA challengers’ application, she does not believe that her vote would have meant that Louisiana would have needed to use a map with one majority-Black district in the 2024 election.

In sum, Jackson did not think this was too close to the election for court intervention and thought that the Supreme Court should have respected the district court’s assessment of whether May 15 is the actual deadline by which Louisiana needs its map set. She does, however, think the ultimate map used in the 2024 election could (and, presumably, should) comply with the Voting Rights Act and the Equal Protection Clause. It is a shrewd opinion that makes its way through fairly deep waters in two short pages.

By throwing themselves on the rocks, Louisiana’s Republican leaders did likely give a one-seat “victory” to “Dems/civil rights groups” on Wednesday. In doing so, however, they also allowed the conservative Supreme Court majority to issue a decision that, despite being a shadow-docket ruling, will nonetheless likely encourage delays in future voting rights litigation and be cited by those seeking to cut off and undermine civil rights groups’ challenges in the future.