Did the Supreme Court flip the House by refusing to enforce the Voting Rights Act?

The Republicans have won a narrow majority in the House of Representatives. Depending on the outcome in the two seats that have not yet been called, a swing of between three and five seats would have left the House in Democratic hands.

The Republicans can thank five of the six Supreme Court justices appointed by Republican presidents ¾ Samuel Alito, Amy Coney Barrett, Neil Gorsuch, Brett Kavanaugh and Clarence Thomas. The election outcome was very likely changed by their Feb. 7, 2022, decision to make it clear that the Voting Rights Act would not be enforced this year to prevent states from using congressional districts drawn in violation of the law.

On Jan. 24, 2022, a three-judge Alabama District Court panel ruled in a 225-page opinion after a seven-day hearing that an “extremely robust body of evidence” “compels” the conclusion that Alabama’s congressional districting plan adopted by its Republican legislature “substantially likely violates” the Voting Rights Act by unlawfully diluting the votes of Alabama’s Black citizens. No one could argue that this was a partisan determination. Two of the three judges were nominated by former President Donald Trump and the third was originally nominated by President Ronald Reagan. They directed that Alabama redraw its congressional districts to comply with the law in this year’s congressional elections. That would have given the Democrats an additional seat and the Republicans would have lost one.

Alabama asked the Supreme Court to stop that from happening. On Feb. 7, the five justices granted that request. Three of them did not feel any need to explain their decision. But Kavanaugh wrote a concurrence that was joined by Alito. He insisted it was too close to the election to require a change in the congressional districts because it “would require heroic efforts” by the state authorities to redraw the districts “and even heroic efforts likely would not be enough to avoid chaos and confusion.”

Chief Justice John Roberts did not buy that explanation. He dissented, observing “the District Court properly applied existing law in an extensive opinion with no apparent errors for our correction” and that decision should apply to this year’s elections. Justice Elena Kagan agreed in an opinion joined by then-Justice Stephen Breyer and Justice Sonia Sotomayor. As Kagan pointed out, the Alabama “legislature enacted its current plan in less than a week.” And Alabama did not even argue it could not redraw the plan to comply with the law in time for the elections.

Yet — more than two and a half months later — on April 27, New York’s highest state court further demonstrated that Kavanaugh’s too close to the election explanation does not hold water. The New York court ruled New York’s congressional districting plan adopted by its Democratic legislature violates the state constitution and must be redrawn for this year’s elections. Unlike Alabama, New York complied, adopted a new plan, and moved its primary scheduled for June 28 back to September. “Heroic efforts” were not required. There was no “chaos and confusion.” And while the plan the New York court rejected was expected to convert three Republican seats into Democratic seats, it was the Democrats that lost three seats under the new plan that resulted from the order.

But the Supreme Court’s Alabama order — that there was too little time before the election to require compliance with the law — remained in place.

Other courts followed its lead. On Feb. 28,  a federal court in Georgia ruled it was likely that Georgia’s redistricting plan unlawfully dilutes the votes of Georgia’s Black citizens. But, citing the Alabama ruling three weeks earlier, the Georgia court found it was too late to require a new plan in time for this year’s elections. That meant at least a second congressional district that would have elected a Democrat this year instead elected a Republican. Then, on June 28, the Supreme Court itself stayed a Louisiana federal court order to create an additional Black majority district because Louisiana’s redistricting plan violates the Voting Rights Act. Yet, a third district thereby became Republican this year that likely would have been Democratic. On March 11, a lawsuit was filed in federal court in Florida that alleges the Florida redistricting plan unlawfully dilutes the vote of Black Floridians and deprives them of two Black majority congressional seats. But by then the Supreme Court’s Alabama ruling had already made clear the court would not allow a change to apply to this year’s elections. Similar lawsuits were brought in Texas federal court in late 2021 alleging Texas’s redistricting plan for this year’s elections unlawfully dilutes the votes of Latino and Black voters. And in Ohio, the state Supreme Court struck down a redistricting plan that gives Republicans two-thirds of the state’s 15 congressional seats even though Republicans comprise about 55 percent of the registered voters, but it ruled the gerrymandered map would apply this year.

What is particularly troubling about the Alabama ruling is that no matter where any Supreme Court justice fits on the political spectrum, and no matter what their judicial philosophy might be, one would have thought that there is common ground that the Supreme Court has a fundamental responsibility to safeguard our democratic system of government. That should mean, at a minimum, not allowing the outcome of our elections, and potentially control over one of our branches of government, to be determined by state legislators trying to game the system in violation of the law.

Michael Dell is a New York lawyer who litigates and writes about constitutional issues.