John Roberts Suggests Some Kind Of Voting Rights 'Preclearance' Like The One He Personally Destroyed
The Chief worries about discriminatory redistricting plans going into effect before review. So did the rest of us, buddy.
(Photo by Jabin Botsford – Pool/Getty Images)
No, Chief Justice Roberts doesn’t actually come out in favor of the preclearance provision from Section 5 of the Voting Rights Act — a provision that he obliterated in Shelby County. Well, he didn’t really get rid of Section 5, only the formula that allowed Section 5 to operate, knowing that passing an alternative subjecting the whole country to Section 5 amounted to a practical impossibility, but you get the point. We’re not writing a law school exam here, we don’t need to indulge the technicalities.
Yet it’s hard to read his latest opinion without seeing a roundabout defense of the bedrock voting rights principle he functionally struck down amid a hail of pledges that racism was “no longer” an issue afflicting some jurisdictions more than others.
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So, uh, it’s got to sting that he’s forced to write this opinion about Alabama. You know, the place where Shelby County is.
In Merrill v. Milligan, the Court once again flexed its shadow docket power to issue significant rulings without the benefit of full briefing or argument. A 5-4 ruling stayed a lower court ruling that had rejected Alabama’s redistricting plan that cracked and packed its way to a map where the state’s 27% Black population is relegated to 14% of the elected representation. In short, the three-judge lower court pointed out that this is illegal and the Supreme Court said — without full briefing — that it can’t really say whether it’s legal or not, but it just will let it ride through the 2022 midterms.
Sorry about that lost congressional seat!
As you might imagine, this isn’t how these cases are supposed to go. Stays pending appeal are rarely granted and Justice Kagan delivers a blistering dissent outlining exactly how bonkers it is to signal an overhaul of existing precedent… and telling states in the meantime that they can start violating that precedent without fearing judicial intervention. If this sounds familiar, it’s because this is pretty much how the Court is handling the Texas Abortion Vigilante Law.
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In response, Justice Keggy McCreepy tried to spin the Purcell prohibition against election law changes weeks before an election into a prohibition on election law changes several months before an election. Left alone, the district court opinion would have been in place for two months prior to even the first absentee votes. Indeed, the ruling that pulled the rug out from everyone before an election is this one tossing the district court ruling. Practical consequences here aside, the concurrence indicates there are at least two votes for the principle that jurisdictions can change their laws to arguably disenfranchise voters as much as four months before the primary and fully evade legal review until the next election.
No way that becomes a problem!
Bringing us to the Chief Justice, whose dissent read like a man straining from the discomfort of being hoisted by that petard. Agreeing with the conservatives that the matter deserves full briefing next Term, Chief Justice Roberts explained that he would reject the stay because the lower court correctly applied the law as it stands today.
Roberts frets over the prospect of overhauling current law and providing voters no protection until long after the fact, essentially giving governments eyeing disenfranchisement a freebie election to test it out.
If only there were some sort of system that could put these changes on hold until the legal issues are hashed out, allowing minority voters to continue under the protection of existing law until then. We could call it “preclearance” or something. And racist redistricting plans could get reviewed before they go into effect. We could even pick states — like a state that triggered two Supreme Court cases over disenfranchisement efforts in the span of a decade — and specifically flag them for preclearance. I wonder why no one thought of that before!
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John Roberts just issued a 2022 complaint about an outcome that only happened because of his own 2013 slapdash end run around the Voting Rights Act. It must burn when the person responsible for all your complaints is you.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
