Sonia Sotomayor Stands Up for Voting Rights. And I’m Here for It.

Although the conservative justices may be content to permit states to gerrymander voters of color out of existence, Sonia Sotomayor doesn’t intend to go softly into that good night.

[photo: Justice Sonia Sotomayor standing in front of an American flag.]
The statute which the majority claimed gave the Supreme Court jurisdiction actually didn’t, Sonia Sotomayor said. Getty Images North America

Sonia Sotomayor has fucking had it.

The voting rights of people of color are turning to dust right before her eyes, and she’s not going to let that happen without a fight.

Yesterday, in a case called Abbott v. Perez, the Supreme Court upheld all but one of Texas’ gerrymandered districts despite a lower three-judge district court having previously ruled that those districts were drawn intentionally to discriminate against Latinx voters. In a 5-4 decision, the Roberts Court bent over backwards in order to ignore the lower court’s ruling and the mountains of evidence submitted to the court that supported it.

Sotomayor dissented—and she didn’t follow convention and dissent respectfully. That she concluded her opinion with a somber “I dissent”—there’s no “I respectfully dissent” (the more traditional manner of penning dissents) to be found—is noteworthy. It’s a bit of shade that signals her displeasure with the majority opinion.

I’m with Sonia: Why respectfully dissent when the Court is so disrespectful of the voting right of people of color in this country? Justice Samuel Alito reached so far to give Texas a win that it’s a wonder he didn’t strain a ligament.

The three-judge lower court ruled in 2017 that all but one of Texas’ electoral maps intentionally burdened voters of color. The court said that the maps violated Section 2 of the Voting Rights Act (VRA) of 1965—which prohibits voting practices or procedures that discriminate on the basis of race, color, or membership in one of the language minority groups listed in the statute—as well as the Equal Protection Clause, and, before issuing an injunction, gave Texas a chance to draw new maps. But the Supreme Court swooped in and handed Texas a win on a technicality: Samuel Alito, writing for the majority, said that the lower court had made a “fundamental legal error” when it required the state—rather than the plaintiffs who brought the suit—to prove that the new maps were constitutional. That was the wrong burden of proof, he said.

That reasoning didn’t sit well with Sonia Sotomayor.

As she pointed out in her dissent—which Justices Ruth Bader Ginsburg, Stephen Breyer, and Elena Kagan signed onto—even if the state got the burden of proof wrong, the majority should have simply kicked the case back down to the lower court with instructions to place the burden where it belongs and reconsider the matter. The majority should not have declared that the maps are constitutional.

But that wasn’t the only problem, in Sotomayor’s estimation. The larger problem, as she explained in painstaking detail for nearly 20 pages, is that the Court didn’t have jurisdiction to hear the case in the first place.

The statute (28 U.S.C. Section 1253) which the majority claimed gave the Supreme Court jurisdiction actually didn’t, Sotomayor said. Section 1253 provides for direct appeals from an order granting or denying “an interlocutory or permanent injunction” in cases that Congress requires three-judge courts to hear. (Federal law requires that cases challenging congressional and legislative maps like the ones at issue in Abbott be heard by a three-judge panel.)

But the three-judge panel didn’t issue an injunction in Abbott. The panel said that Texas had violated Section 2 of the VRA and the Equal Protection Clause when it drew its discriminatory maps, but stopped short of issuing an injunction. No injunction? No appeal. For Sotomayor, it was as simple as that.

“The Court today goes out of its way to permit the State of Texas to use maps that the three-judge District Court unanimously found were adopted for the purpose of preserving the racial discrimination that tainted its previous maps,” Sotomayor wrote.

“This disregard of both precedent and fact comes at serious costs to our democracy,” she said. “It means that, after years of litigation and undeniable proof of intentional discrimination, minority voters in Texas—despite constituting a majority of the population within the State—will continue to be underrepresented in the political process,” she continued.

The majority undercut the lower court’s finding of intentional discrimination by cherrypicking quotes and lifting others out of context, as Sotomayor pointed out in her opinion, demonstrating a willingness to look the other way while Texas continues to decimate people of color’s voting rights. This makes it virtually impossible for the remaining provisions of the Voting Rights Act not slaughtered in Shelby v. Holder, to rein in states like Texas that are purposefully disenfranchising voters of color, either through gerrymandering or the sort of stringent voter ID laws that were at issue in Veasey v. Abbott.

A ruling against Texas would have made the state subject to Section 3 of the Voting Rights Act, a provision of the VRA which allows states not covered by Section 4 (the provision that determines which jurisdictions would be subject to preclearance under section 5, but which is now defunct, thanks to Shelby) and therefore not subject to Section 5 (which requires those jurisdictions covered in Section 4 to obtain preclearance before enacting any changes to voting laws, but which is now toothless thanks to Shelby’s gutting of Section 4) to be brought under federal supervision if a federal court found that those states had violated the 14th or 15th amendments. Section 3 lawsuits—or “bail-in” lawsuits as they’re known in legal circles—are uncommon. “Since 1975, Section 3 has bailed-in two states, six counties, and one city,” as Travis Crum noted in a 2010 article published in the Yale Law Journal. But in a post-Shelby world, voting rights advocates are using everything they can muster to fight voter suppression, including the often ignored Section 3.

If the Supreme Court had affirmed the district court ruling—that Texas had discriminated against Latinx voters intentionally—or even remanded it for further findings on the “fundamental legal error” that Sam Alito was keening about, then the state might ultimately have been brought back under the preclearance requirement. (Granted, in this administration with this attorney general, that doesn’t mean much, but it might have for future administrations more committed to the rule of law than the current one seems to be.) That would have been a big deal and a way to circumvent the Court’s decimation of the VRA when it killed Section 4 of the VRA in Shelby.

Instead, the Supreme Court nodded and winked at Texas, indicating that Texas could continue imposing draconian voting restrictions with no pushback from the Court.

Although the conservative justices may be content to permit states to gerrymander voters of color out of existence, Sotomayor doesn’t intend to go softly into that good night. She understands that the right to vote is meaningful and that voters of color should be able to exercise it unburdened by the machinations of a Republican party that enjoys waning support.

“Those voters must return to the polls in 2018 and 2020 with knowledge that their ability to exercise meaningfully their right to vote has been burdened by the manipulation of district lines specifically designed to target their communities and minimize their political will.”

Damn straight.