For court watchers waiting for the Supreme Court decision that could doom the Voting Rights Act, Monday’s emergency docket ruling out of New York was ominous.
The Court, in a flailing overreach, stepped in to block a state court order that New York re-map to give minority voters in one district a better opportunity to choose their preferred candidate. A map approved in 2024 during the state’s chaotic last round of redistricting diluted minority voters, advocates argued, in violation of the state constitution. Rep. Nicole Malliotakis (R-NY), who represents the district, intervened in the case, Malliotakis v. Williams, and asked the U.S. Supreme Court to get involved. The unsigned majority did, bursting into the state-level proceeding before those courts had even finished with the case, flagrantly overstepping its bounds to gift Malliotakis her seat back and nullify an opportunity for Democrats to claw back a member in the Great Mid-Decade Redistricting Wars.
The majority did not explain its reasoning. But a brief concurring opinion, written by Justice Samuel Alito, is disturbing beyond the majority’s comfort with norm-breaking as long as it serves Republican interests. He also tears down an innovative attempt to challenge racially discriminatory redistricting under a state constitution — a wise avenue for voting rights lawyers to test, as the Court seems poised to kill the part of the Voting Rights Act under which such maps are usually challenged any day.
“These cases concern a state-court order that blatantly discriminates on the basis of race,” he wrote.
He means that a court ordering a new district to be drawn that allays the dilution of Black and Latino voters actually discriminates against the white voters the old map had overly empowered. In calling that ordered redraw “racially discriminatory,” Alito may also have previewed what he has in store for the VRA.
“That is unadorned racial discrimination, an inherently ‘odious’ activity that violates the Fourteenth Amendment’s Equal Protection Clause except in the ‘most extraordinary case,’” he wrote.
Last summer, the Court turned a garden variety redistricting case into the vehicle by which experts predict it will defang the last potent weapon in the VRA, Section 2. The Court posed its own question, which neither party had asked it to answer: Does Section 2 (under which voters challenge racial discrimination in redistricting) violate the 14th or 15th Amendments? In other words, is an attempt to protect minority voting rights, which have always been under attack in parts of this country, in itself “unadorned racial discrimination”? The decision Alito and co. seemed during oral arguments to be building towards is a complete perversion of both the VRA and the Reconstruction Amendments, all meant to undergird Black Americans’ ability to vote without having to overcome specially designed obstacles.
Justice Sonia Sotomayor, joined by the two liberals in dissent, spent more time on the right wing justices’ grating hypocrisy than she did the knee-jerk rejection of arguments that protect minority voters. She rightly pointed out that the Court’s theories about when to properly interfere in election-related cases often shifts depending on which party would be served by the interference.
But she also struck on a topic that has been an enduring worry of those trying to knit together some kind of safety net, should the Court declare Section 2 illegal, or unconstitutional, this term. If the Court renders Section 2 unusable, litigation to fight racial discrimination in redistricting would have to shift almost entirely to state courts. Voting rights groups have been spearheading efforts to pass state-level Voting Rights Acts to preemptively bolster that toolkit.
But the Court showed Monday that it won’t hesitate to thrust itself into state-level proceedings, the better to eradicate minority voting protections (and the ensuing Democratic votes) from every level of the legal system.
“By granting these applications, the Court thrusts itself into the middle of every election-law dispute around the country, even as many States redraw their congressional maps ahead of the 2026 election,” Sotomayor wrote. “It also invites parties searching for a sympathetic ear to file emergency applications directly with this Court, without even bothering to ask the state courts first. There is much reason to question whether the majority will exercise its newfound authority wisely, but there is no reason to question this: If you build it, they will come.”
Read the ruling here:
