On Tuesday evening, the Supreme Court blocked two rulings by a federal district court that would have required Texas to redraw its state and federal congressional districts. The lower court had ruled that the Texas Legislature illegally gerrymandered these districts along racial lines and ordered new maps for the 2018 election. But by a 5–4 vote, the Supreme Court put that order on hold, ensuring that the gerrymander will remain through 2018. The decision may also indicate that the five Republican-appointed justices will eventually reverse the district court’s decisions altogether.
The Supreme Court’s abrupt intervention is a devastating blow to the years-long fight against race-based voter suppression in Texas. Since 2011, federal courts have ruled nine times that Texas intentionally discriminated against minority voters. Before Tuesday, civil rights advocates had good reason to believe that the judiciary would finally put a stop to the Texas GOP’s anti-democratic chicanery. Now it seems that the high court’s conservative bloc may thwart this progress and force Texan minorities to continue suffering under a self-perpetuating and racist system of vote dilution.
Voting rights activists have been suing Texas over its discriminatory legislative districts since 2011. They claim that Texas’ GOP-dominated legislature intentionally gerrymandered the state after the 2010 census to dilute the voting power of minorities, particularly Latinos. Both the Equal Protection Clause of the 14th Amendment and the Voting Rights Act prohibit race-based vote dilution. Thus, the plaintiffs in these cases have argued that either the Texas Legislature or a federal court must redraw these maps to remedy their unlawful gerrymandering. Texas has fought these lawsuits tooth and nail, recognizing that a race-blind map would contain fewer seats for Republicans in both the state legislature and the federal House of Representatives.
Earlier this year, a three-judge district court issued a series of opinions and orders that seemed, at long last, to vindicate the plaintiffs’ claims and mitigate the current gerrymander. By a 2–1 vote, the court ruled that Texas had engaged in intentional discrimination when drawing two federal congressional districts. The court also held, by the same vote, that 11 of Texas’ state House districts were impermissibly tainted by the intentional dilution of minority votes. Moreover, the court found that another House district constituted outright racial gerrymandering. Finally, the court ruled that nine House districts violated the “one person, one vote” principle of the Equal Protection Clause.
To back up its conclusions, the majority wrote two lengthy opinions and released a comprehensive 151-page findings of fact. It directed the legislature to draw new maps that would remedy the current plan’s legal defects. If the legislature proved unable or unwilling “to take up redistricting,” the majority noted that the court would draw remedial maps itself.
Texas promptly appealed these decisions to the Supreme Court. As election law expert and Slate contributor Rick Hasen notes, this appeal was arguably premature, as the court had not even drawn up remedial maps yet. But the court’s five conservatives decided to weigh in anyway, putting the lower court’s rulings on hold until the justices resolve the case. (All four left-leaning justices dissented from the orders.)
This “aggressive” intervention, as Hasen puts it, is an ominous sign. Progressives have been hoping that Justice Anthony Kennedy might join the liberals to curb both partisan and racial gerrymandering. But Kennedy already voted with the conservatives in a 5–4 decision to block a lower court order compelling Wisconsin to fix its partisan gerrymander. Now he has voted with them once again to block an order compelling Texas to fix its racial gerrymander. Kennedy’s eagerness to let both states maintain their unfair redistricting schemes may suggest that he does not want the courts to enter this political thicket. Or it might simply indicate that he wants the chance to hear a full argument and weigh in himself—probably decisively—before they do.
Still, Tuesday’s decision is troubling for two other reasons. First, the court’s conservatives have, for the time being, denied Texas voters their lone recourse to bring democratic elections back to the state. By “packing and cracking” Latino voters—concentrating most in a few safe Democratic districts, then distributing the rest in safe Republican districts—Texas has largely done away with contested races. The result of many elections is preordained; even though the state is increasingly diverse, most districts are gerrymandered to protect the incumbent party. Latino voters who were placed in a dark-red district cannot cast meaningful ballots for a Democrat as it is certain to be outweighed by Republican votes. Only the courts can put an end to this cycle. They should not abdicate their duty out of fear that partisans will attack their legitimacy.
Second, the Supreme Court’s intervention is a powerful reminder of how Senate Majority Leader Mitch McConnell’s blockade of Judge Merrick Garland continues to damage American democracy. As political scientist Daniel Nichanian points out, this blockade continues to help Republicans salvage their other illegitimate power-grabs, like Texas’ gerrymander. McConnell ensured that arch-conservative Neil Gorsuch would take Garland’s seat, maintaining a five-justice conservative majority. And of course, on Thursday, Gorsuch provided the fifth vote to preserve Texas’ racial redistricting. McConnell held that seat for a reason. And Gorsuch is voting exactly as McConnell hoped he would.
Tuesday, in short, was a terrible day for voting rights, for genuinely contested elections, and for basic democratic principles. The Supreme Court’s conservatives have cast serious doubt on the judiciary’s capacity to alleviate gerrymanders—including race-based redistricting—that turn general elections into a joke. And with Gorsuch’s help, they have guaranteed that at least one more election cycle in Texas will take place under a map that was gerrymandered with the intent to dilute Latinos’ voting power. If Republicans maintain control of the House of Representatives next year, they could have this decision from the Supreme Court to thank.