IT HAS not been a good month for voting rights at the Supreme Court. On June 11th, the justices gave the green-light to states experimenting with new ways of removing voters from the rolls. A week later, the court told America that procedural tangles prevented it from doing anything to curb partisan gerrymandering—at least for now. On June 25th the five conservative justices formed a bare majority to mostly absolve Texas of findings it had discriminated against Latinos when lawmakers redrew congressional and state-legislative maps following the 2010 census.

Abbott v Perez was written by Justice Samuel Alito, author of Husted v Philip Randolph Institute, the voter-purge ruling earlier in the month. In both cases, Justice Sonia Sotomayor wrote a strident dissenting opinion joined by Justices Stephen Breyer, Ruth Bader Ginsburg and Elena Kagan. Near the end of her 46-page Abbott dissent, Justice Sotomayor found occasion to quote her own words published 14 days earlier. “Our democracy rests on the ability of all individuals, regardless of race, income or status, to exercise their right to vote”, she wrote. The majority’s decision “burden[s] the rights of minority voters” to exercise the “most precious right” of American democracy.

The issue in Abbott stretches back to 2011, when Texas’s redrawn electoral maps met with immediate resistance as potential violations of the Voting Rights Act. Before 2013, when the Supreme Court defanged two sections of this law in Shelby County v Holder (another 5-4 ruling), the maps were under judicial scrutiny for diluting the voting strength of black and Hispanic voters. The need for federal “preclearance” (approval before implementing any voting changes) ended with Shelby County, but the issue did not go away. 

As election-law expert Rick Hasen has noted, the case (which was originally two separate cases bearing the same name) is “crazy with details”. Fast forwarding to the most recent round of litigation, in August 2017 three federal judges in Texas held that two of the state’s congressional districts were drawn to dampen minority voting power in violation of both section 2 of the Voting Rights Act (which Shelby County left alone) and the Fourteenth Amendment guarantee of the “equal protection of the laws”. In one district Hispanics had been “intentionally deprived of their opportunity to elect a candidate of their choice” while another showed signs of an “impermissible racial gerrymander". The court rejected Texas’s claim that its gerrymander was merely partisan, not racial. The same court found that several state legislative districts were illegally “packed” with Hispanic voters, decreasing the community’s voting power in adjacent districts, while others “cracked” Hispanic voter strength by sorting minority voters into a number of districts where their voices would be drowned out. The Texas legislature, the court concluded, intended “to ensure Anglo control” of the vote.

The Supreme Court, by a 5-4 vote, agreed last September to temporarily halt the lower-court’s order that a new set of maps be drawn by the legislature. Now, by the same margin, the justices have inked in that response—assuring that the 2018 and 2020 elections will be conducted with the fraught maps. The majority opinion justifying this view—and accusing the lower court of having “committed a fundamental legal error”—is telling in its tone. Justice Alito began by surveying the constitutional and statutory constraints states face with regard to race and redistricting. While the Fourteenth Amendment “restricts the consideration of race in the districting process”, the Voting Rights Act “pulls in the opposite direction”. And “on top of this”, he wrote, with a hint of dismay, “Texas was (and still is) required to comply” with section 2 of the Voting Rights Act. The “especially complicated” task facing Texas lawmakers was a “legal obstacle course”, Justice Alito wrote, and they did their level best to thread the needle. Once all the evidence is considered, he added, the “legislature’s intent is entirely reasonable and certainly legitimate”. Its efforts were “understandable and proper” and betray no illicit discrimination.

Justice Sotomayor saw things rather differently. Beyond the majority’s doubtful assertion of jurisdiction over the matter (a subject of that occupied much of the oral argument and many pages of the opinions), the dissent criticised Justice Alito for pursuing his “desired result” based on a cherry-picked analysis of the evidence. The lower court’s unanimous ruling against Texas included a “meticulous” review of the faulty procedures by which the legislature produced the electoral maps. The three lower-court federal judges had hewed to the guidance of Supreme Court precedent “virtually to a tee”, Justice Sotomayor wrote, and “there is no question as to the discriminatory impact” of the Republican lawmakers’ district lines. The ruling by Justice Alito and his four conservative brethren did find one impermissible racial gerrymander—in House District 90—but otherwise “goes out of its way to permit” Texas to elect its representatives using maps drawn “for the purpose of preserving...racial discrimination”.

“This disregard of both precedent and fact comes at serious costs to our democracy”, the dissent concluded. Despite seven years of legal peregrinations and “undeniable proof of intentional discrimination”, Texas’s minority voters “will continue to be underrepresented in the political process”, Justice Sotomayor wrote. This was all due to electoral maps that have been manipulated to “target their communities” and “minimise their political will”.