Opinion | If Democrats Win Back the House, They Will Have John Roberts to Thank - The N... - 0 views
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Milligan, Wasserman continued, “could reverberate across the Deep South leading to the creation of new Black-majority, strongly Democratic seats in multiple states
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Nicholas Stephanopoulos, a law professor at Harvard and an expert on election law, wrote by email that Milligan is significant both substantively and politically:First, it means that Section 2 remains fully operative as a bulwark against racial vote dilution; second, it signals to conservative lower courts that they need to rule in favor of plaintiffs on facts like those in Milligan; third, it takes off the table arguments that Section 2 must be narrowly construed to avoid constitutional problems; and fourth, if Section 2 is constitutional, so should be other laws targeting racial disparities.
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it comes at a time when “a confluence of at least four political and technological developments will make its practical effect significant.”
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First, technological advances, as used in the Milligan case, make it easier to find new V.R.A. districts that can be reasonably configured.
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Second, minority-preferred candidates can win with lower minority voting-age populations (falling from estimates as high as 65 percent in the 1990s to below 45 percent now), which means more minority voters are available to create additional V.R.A. districts.
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Fourth, the debates over partisan gerrymandering in the last decade brought many new strong social scientists into this area, in which expert analysis of maps and voting patterns plays a critical role.
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John Roberts’s majority opinion is particularly important because it rejects the argument that race-based remedial districting is unconstitutional:Alabama further argues that, even if the Fifteenth Amendment authorizes the effects test of section 2, that Amendment does not authorize race-based redistricting as a remedy for section 2 violations. But for the last four decades, this Court and the lower federal courts have repeatedly applied the effects test of section 2 as interpreted in Gingles and, under certain circumstances, have authorized race-based redistricting as a remedy for state districting maps that violate section 2.In that context, Roberts continued, “we are not persuaded by Alabama’s arguments that section 2 as interpreted in Gingles exceeds the remedial authority of Congress.”
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My best guess is that Roberts and Kavanaugh thought it best to proceed cautiously and bide their time. The court as an institution can only take so many bombshells at a time. The issue will come back to the court soon enough.
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But, Tribe continued, “Allen v. Milligan remains highly significant as an essential reminder that the court doesn’t exist in an isolation booth, unaffected by public reactions to its decisions that venture too far from the mainstream of legal and social thought.”
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Roberts and Kavanaugh, in Tribe’s view, chose not to press the case against race-based redistricting in part because of “the controversy unleashed by the court in its shattering abortion ruling in Dobbs last June, coupled with other unrestrained shocks to the system delivered by the court in the landmark cases involving guns and climate change, and aggravated by the ethical stench swirling about the court as a result of improprieties.”
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These developments, Tribe continued, “almost certainly had an impact, however subconscious, on the chief justice and on Justice Kavanaugh, who has increasingly sought to distance himself from the hard right.”