Brett Kavanaugh’s sneaky, underhanded new voting rights opinion, explained

On Monday night, Supreme Court handed down a deeply alarming decision that suggests that the Court’s Republican majority is about to cut away one of the few parts of the Voting Rights Act that it hasn’t already killed or gutted.

The immediate impact of the Court’s 5-4 decision in Merrill v. Milligan is that Alabama’s new congressional maps, which a three-judge panel that includes two Trump appointees determined to be an illegal racial gerrymander, will take effect in the 2022 election. Under those maps, only one of the state’s seven districts — or 14 percent of the US House seats — has a real shot of electing a Black lawmaker. African Americans make up about 27 percent of the state’s population.

The lower court ordered the state to draw at least two districts “in which Black voters … have an opportunity to elect a representative of their choice.” Thus, had the lower court decision taken effect, it is likely that the racial composition of Alabama’s congressional delegation would closely match that of the state as a whole.

Monday’s order only suspends the lower court’s decision until the Court can give this case a full hearing. But the allegedly racially gerrymandered map will be in effect for the 2022 election — and it could become permanent after the Supreme Court hears and decides the full case.

One reason the Court’s order in Merrill is disturbing is that Alabama’s lawyers offered an exceptionally weak legal argument when they asked the justices to block this lower court order. Their argument could potentially neutralize an important safeguard against racist gerrymanders. The Voting Rights Act provides fairly robust protections against racial gerrymanders — legislative maps that target voters of a particular race — but Alabama asked the Supreme Court to impose a new burden on plaintiffs challenging racial gerrymanders that may be impossible to overcome.

Justice Brett Kavanaugh wrote a separate concurring opinion that would impose a novel new restriction on all voting rights cases. More on the specific convoluted restriction later. But in creating his new restriction, Kavanaugh relied heavily on Purcell v. Gonzalez (2006), a decision which held that courts should be reluctant to change a state’s election rules as an election draws close. “Federal courts ordinarily should not enjoin a state’s election laws in the period close to an election,” Kavanaugh wrote.

There’s still a fairly obvious problem with Kavanaugh’s opinion. Alabama will not elect its new slate of US House members until November. It’s now February — nine months before the date of the general election and more than three months before the state’s next primary election. The state simply is not in a “period close to an election,” unless we count the entirety of 2022, and therefore the entirety of any year in which an election is held, as “close to an election.”

Technically, Kavanaugh’s opinion is not a binding precedent. It was joined only by Justice Samuel Alito, not by a majority of the Court. But Kavanaugh is also the median vote on this Republican-dominated Supreme Court — in politically charged cases, there are normally four justices to Kavanaugh’s left, and four to his right. That means that his words carry an unusual amount of weight, since it is unlikely that a litigant will find five justices willing to contradict him.

The bottom line is that Merrill — even in its temporary form — is a disaster for voting rights. It suggests that the Court is going to escalate its assault on the Voting Rights Act — and on voting rights more broadly. And it suggests that even exceedingly weak legal arguments offered by red states have a very good shot of prevailing in this Supreme Court.

Kavanaugh would strip the federal judiciary of much of its power to protect voting rights

When Purcell was handed down in 2006, it largely went unnoticed by anyone who isn’t an election lawyer. Purcell warned that “court orders affecting elections … can themselves result in voter confusion and consequent incentive to remain away from the polls,” and that this risk increases “as an election draws closer.”

No justice dissented in Purcell, and its warning about court orders that disrupt elections is best read as a note of caution. Purcell was correct that voters might be confused about how to vote if, say, a court were to order a bunch of polling precincts to be relocated on the eve of an election. So the Court asked judges to be careful about such last-minute orders without actually forbidding them in especially compelling cases.

But as the Court grew more conservative, it seemed to treat Purcell less as a reason for caution and more like a firm command. The Court’s Republicans relied on Purcell, for example, to halt lower court orders that would have made it easier to cast a ballot at the height of the pandemic.

Kavanaugh’s opinion in Merrill would expand Purcell even further if adopted. Alabama enacted its congressional maps on November 4, 2021, and the lower court handed down its decision striking down those maps on January 24, 2022 — well more than nine months before the general election.

Moreover, as Justice Elena Kagan notes in a dissenting opinion, the lower court heard “over seven days of testimony” and received “more than 1,000 pages of briefing.” The lower court opinion striking Alabama’s maps is 225 pages long. It’s unclear how these three judges could have moved any faster and still worked through the complicated factual questions in Merrill in a careful and judicious manner.

So one upshot of Kavanaugh’s opinion is that the Purcell window — the period that counts as “close to an election” — should extend for more than nine months. That’s such a long period of time when courts cannot hand down “orders affecting elections” that it would be helpful if Kavanaugh informed us when, exactly, a judge is allowed to hand down an order impacting a state’s election laws.

In fairness, Kavanaugh does write that there are some cases when Purcell should not apply, even if an election is about to happen. But he writes that lower courts are bound by Purcell unless “the underlying merits” of a case “are entirely clearcut in favor of the plaintiff.”

Here as well, his opinion goes off the rails. As Chief Justice John Roberts writes in dissent, “the District Court properly applied existing law in an extensive opinion with no apparent errors for our correction.” (Roberts isn’t exactly known as a champion of voting rights. The fact that he accuses his Court of going too far in a voting rights case is itself remarkable.)

The underlying merits of Merrill are clear under existing law. Kavanaugh’s suggestion that the proper outcome is unclear only makes sense if you presume that longstanding Supreme Court precedents should be tossed out.

Thus, the upshot of Kavanaugh’s opinion appears to be two-fold. First, Kavanaugh would extend the Purcell window so that it apparently encompasses the entire election year. And, second, he would forbid judges from ruling in favor of voting rights plaintiffs during this window, even if those judges faithfully apply existing law, if Kavanaugh personally believes that this law should be changed.

How else should we understand Kavanaugh’s implication that this relatively straightforward case is not clear-cut?

Alabama seeks an unprecedented new restriction on the Voting Rights Act

The Court’s precedents governing racial gerrymandering are, admittedly, quite messy.

When a plaintiff alleges that a state’s legislative maps violate the Voting Rights Act — like the plaintiffs in the Alabama case are alleging — courts typically must apply the multi-step analysis that the Court laid out in Thornburg v. Gingles (1986). The last step of this analysis requires judges to weigh at least nine different factors before striking down a state’s legislative map.

In Merrill, however, Alabama did not attack any of the more confusing parts of the Gingles framework. Indeed, it made the baffling decision to attack what may be the most straightforward part of this framework.

Under Cooper v. Harris (2017), a fairly recent decision applying Gingles, a plaintiff who believes that a state should have an additional district where a particular minority group is in the majority must show that this group is “sufficiently large and geographically compact” that it is actually possible to draw a new district where they “constitute a majority.”

The purpose of this requirement, as Justice Kagan explains in her Merrill dissent, is to require voting rights plaintiffs to prove from the outset that “what they are asking for is possible.” There’s no point allowing a lawsuit to move forward if a court cannot actually give the plaintiffs what they seek.

In any event, the plaintiffs in Merrill cleared this very low bar. One set of plaintiffs, for example, hired a mathematician to produce four sample maps that feature compact districts, and that include two Black-majority districts.

Alabama, however, asked the Supreme Court to impose a new restriction. According to the state, the Merrill plaintiffs erred because, in order to produce these sample maps, the plaintiffs had to “prioritize race first and consider other race-neutral factors second” — something the state claims is not allowed.

But this objection makes no sense. Again, Gingles and Cooper require a plaintiff who alleges that a state should have two Black-majority districts to first produce sample maps with two Black-majority districts. How is it even possible to complete that task without paying close attention to race?

As Kagan writes, “at no time has this Court held that plaintiffs must answer the race-infused question of the first Gingles condition without any awareness of race.”

Kagan does acknowledge one other possibility: “Plaintiffs can now use technology to generate millions of possible plans, without any attention to race,” she writes, and some of these randomly drawn maps would presumably contain two Black-majority districts.

But really, what’s the point of imposing such a burden on voting rights plaintiffs? Asking these plaintiffs to produce millions of random maps and then hunt through them to find some that include two Black-majority districts is a bit like asking Vox Media to fire its writers and replace them with a million monkeys banging away at a million typewriters.

Eventually, those monkeys would produce an analysis of the Supreme Court’s decisions that is just as trenchant as anything I could write — but only after churning out countless pages of gibberish.

In any event, Kavanaugh appears to believe that it is not “entirely clearcut” whether the Voting Rights Act requires the Merrill plaintiffs to use the monkeys-banging-on-typewriters method to produce sample maps.

While the Court figures that out, a total of five justices agreed to halt the lower court’s order and allow a racial gerrymandered map to be used in Alabama in 2022.