Election Law Fallout Post Shelby

By Hubert Plummer posted 02-12-2022 12:36 AM


I’ve written a bunch of posts on the erosion of Voting Rights, starting with the Shelby County case from 2012 which began the evisceration of the Voting Rights Act of 1965.[i]  The fruits of those attacks are coming home to roost.

Chief Justice John Roberts led the Supreme Court in its Shelby decision.  He held that the standards of 1965 were no longer applicable and said that the formula was outdated and to apply those standards to today was inappropriate.  He said:

In 1965, the States could be divided into two groups: those with a recent history of voting tests and low voter registration and turnout, and those without those characteristics. Congress based its coverage formula on that distinction. Today the Nation is no longer divided along those lines, yet the Voting Rights Act continues to treat it as if it were.

I don’t know if he was naïve or willful with that statement, but whichever it was, he was wrong.  As I discussed in my other posts, the discriminatory changes in voting laws began almost immediately.

Before Shelby, certain States would be required to get approval for redistricting Congressional districts.  In the post Shelby world, they are free to change things and can be subject to review after the fact.  Redistricting is taking place in many states based on the 2020 census results.  This means that they can make changes that will effect the next election, before the courts have a chance to review the changes.

The first one of those to reach the Supreme Court has been reviewed.  In Merrill v. Milligan, et al.[ii] the Court reinstated an Alabama redistricting map that did nothing to improve the racial makeup of districts.

Alabama has had significant changes in its demographics since the 2010 census.  Alabama’s Black population grew by 4%, while its White population shrank by 2%.  Black people make up approximately 25% of Alabama’s voters.  Still, the old district maps had only one out of its seven districts in which Black people held a majority.[iii]  The second and third largest cities in Alabama, Birmingham and Montgomery are in a single district.  Birmingham is 68% Black and Montgomery is 60% Black.[iv]  The four largest cities in Alabama are right around 200,000 in population.  The fourth largest, Mobile, is 51% Black and only 40% White.  You might think that Birmingham and Montgomery should have their own districts.  You might also think that Mobile should have more of a say in its district, yet the districts are carefully drawn to include most the Black population in just one district.  This guarantees the other six districts will have a White majority.

Districts should ideally represent the voters in a particular area, yet politicians are so skilled at drawing maps in such a tortured way that they can make sure that the party in power stays in power.[v]  It is known as gerrymandering, a portmanteau named after 1812 Massachusetts Governor Elbridge Gerry and a Salamander, since it was thought the districts he approved resembled salamanders.[vi]

One of the jobs of Courts is to review these redistricting to assure it is fair.  Under the Civil Rights Act of 1965, they were reviewed prior to going into effect.  Now, they go into effect and are reviewed after.

On January 24, 2022, a three judge panel in the Federal District Court for Northern Alabama, made up of one judge appointed by Clinton and two appointed by Trump, in a 400 page decision, held that a second district should be created that held a majority of black voters.[vii] The panel declined to put its order on hold and the case was appealed to the Supreme Court.

Justice Kavanaugh wrote the concurring opinion that the District Court’s order should be blocked pending the full appeal.  The case is set for argument sometime next fall. That means the new districts, that a Federal Court has already ruled are discriminatory, will be in effect for the next election.

Kavanaugh’s reasoned that the order was issued too close to the election for Alabama election officials to make changes.  It would be impossible and too disruptive to do it now, before the 2022 elections.

Justice Kagan pointed out that the current map was drawn and voted on by the Alabama legislature in about a week and the next elections in Alabama were scheduled at least four months from now. She said, “Alabama is not entitled to keep violating Black Alabamians’ voting rights just because the court’s order came down in the first month of an election year”.

Chief Justice Roberts, perhaps seeing the mess he created with Shelby manifest, joined the dissent.  He said that the District Court’s order is consistent with current voting law and would allow the order to take effect pending the full appeal.[viii]

We shall see what happens in the fall.  Meanwhile there will certainly be more cases on voting rights coming through the pipeline.









The author[s] is solely responsible for this blog submission.  It does not represent the position of the New York State Bar Association or its Committee.

1 comment



02-13-2022 01:54 PM

Gerrymandering is an insult to American democracy.
Perhaps what would work the best, and be most fair overall, is to simply divide up every political office by the number of representatives, divided by longitudinal lines. Politics is then excluded from the equation.
As to Hubert's excellent post, two NY Times pieces are of interest:
Jamelle Bouie's "The Supreme Court Is Just Doing What the Supreme Court Does," NY Times (Feb. 11, 2022),
Linda Greenhouse's "The Supreme Court Has Crossed the Rubicon," NY Times (Feb. 9, 2022),