Supreme Court allows racially gerrymandered AL map; appears ready to throw out another campaign bribery rule

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Racial gerrymandering

The Supreme Court issued a 5-4 decision (pdf) halting the redrawing of Alabama’s congressional map after a lower court ordered the ruthless Republican gerrymander thrown out.

A three-judge panel, made up of two Trump appointees and a Clinton appointee, ruled last month that the 6R-1D map violated the Voting Rights Act’s ban on racial gerrymandering. Despite comprising 27% of the state’s population, the Republican-controlled legislature only drew one black-majority district.

Alabama’s Black population in the challenged districts is sufficiently geographically compact to constitute a voting-age majority in a second reasonably configured district…Under the totality of the circumstances, including the factors that the Supreme Court has instructed us to consider, Black voters have less opportunity than other Alabamians to elect candidates of their choice to Congress.

The conservative Supreme Court majority’s decision means that the gerrymandered map will be used for the 2022 elections. Justice Elena Kagan, joined by Justices Sonia Sotomayor and Stephen Breyer, laid out the consequences in her dissent:

Today’s decision is one more in a disconcertingly long line of cases in which this court uses its shadow docket to signal or make changes in the law, without anything approaching full briefing and argument. Here, the district court applied established legal principles to an extensive evidentiary record. Its reasoning was careful—indeed, exhaustive—and justified in every respect. To reverse that decision requires upsetting the way Section 2 plaintiffs have for decades—and in line with our caselaw—proved vote-dilution claims. That is a serious matter, which cannot properly occur without thorough consideration. Yet today the Court skips that step, staying the District Court’s order based on the untested and unexplained view that the law needs to change.

That decision does a disservice to our own appellate processes, which serve both to constrain and to legitimate the Court’s authority. It does a disservice to the District Court, which meticulously applied this Court’s longstanding voting-rights precedent. And most of all, it does a disservice to Black Alabamians who under that precedent have had their electoral power diminished—in violation of a law this Court once knew to buttress all of American democracy.

Legalized bribery

The Supreme Court appears keen to throw out an FEC limit on how much campaign money can be used to repay a candidate’s personal loan after an election. Currently, the FEC allows a candidate to lend their campaign an unlimited amount of money, but only permits repayment of up to $250,000 within 20-days after an election.

The repayment limit is meant to prevent such loans from becoming a way to bribe candidates who go on to be elected officials. For instance, if a candidate lends their campaign $300,000 before an election, they can charge whatever interest they like. If they win the election, donors can help to not only pay off the loan, but also the interest. So the candidate-turned-lawmaker could net tens-to-hundreds-of-thousands of dollars in profit, even with the limit in place.

  • This is, in fact, what Rep. Grace Napolitano (D-CA) did in 1998 before the anti-bribery provision was enacted. She charged her campaign 10% interest for a $150,000 loan. Ten years later, she raised over $221,780 to repay that loan.

Sen. Ted Cruz brought the suit against the FEC seeking to change the limit after loaning his campaign $260,000 and—seemingly intentionally—waiting more than the 20-day window after the 2018 election to pay himself back the permitted $250,000. Government lawyers allege that Cruz manufactured this conflict in order to bring a lawsuit and allow the conservative Supreme Court the opportunity to throw out the repayment limits (pdf):

Once the 20-day deadline elapsed, the Commission’s regulation required that $10,000 of the $260,000 loan be recharacterized as a contribution from Senator Cruz to his campaign. Senator Cruz then emailed his campaign staff: “Since more than 20 days have passed, it would be REALLY good if we could pay back at least some of the $250k now.” The committee then repaid Senator Cruz $250,000. But because the committee had purposely waited until the 20-day post-election period had elapsed, it could not repay the remaining $10,000. Appellees have stipulated that “the sole and exclusive motivation behind Senator Cruz’ actions in making the 2018 loan and the committee’s actions in waiting to repay them was to establish the factual basis for this challenge.” [emphasis mine]

The Court’s conservative justices were skeptical of the government’s argument that Cruz’s “self-inflicted” injury negated his right to sue. Justice Clarence Thomas suggested that a black man’s decision to sit in a whites-only rail car in order to challenge segregation (Plessy v. Ferguson) would fall under the lawyer’s self-inflicted injury standard (clip).

Thomas: My final question is, going back to your standing, you — you said a number of times that these self-inflicted injuries can’t be a basis for standing. At least that’s what I understand. But how would you — using that at that level of generality, what would you say about Plessy sitting in the wrong car?

DOJ: I would — we would not say that that is self-inflicted in the relevant sense.

Thomas: Well, why not? I mean, it’s just — all he has to do is go to another car.

DOJ: That is, Plessy is attempting to assert a — a legitimate constitutional right and is attempting to do something in the real world that presumably he would do if the law were not on the books…This is a case in which the plaintiffs did something they would not otherwise have done solely for the purpose of being injured and then filing a suit.

Liberal Justice Elena Kagan, perhaps sensing the likely FEC loss, suggested that rather than throw out the entire law’s repayment limit, the Court could consider invalidating the 20-day requirement. Chief Justice John Roberts jumped in to agree, questioning whether Cruz’s lawyers had a more valid path open to them ([clip][(

Kagan: …separate and apart from standing, it just seems as though it’s its own legal problem that this 20-day requirement is in there in the regulation when it’s — it’s — it’s — it’s not mentioned or — or in some sense comprehended by the statute itself. And I’m wondering whether we have a statutory question before we get to any constitutional question?

Cruz’s lawyer: Your Honor, to — to whatever extent there are statutory objections to the 20-day regulation, the parties did not join that issue.

Roberts: Well, I mean — to whatever extent, I mean, you can see it. It jumps off the page. I mean, you’ve got a statute that does not impose a First Amendment inhibition on a — on a — a — a candidate, but some administrator in an agency said, well, I’m going to add a 20-day limit on these First Amendment rights. I mean, you’re the one telling us how important they are. Why would you let an agency make this up on their own? I would have thought that would be the first — Count 1 in your — your complaint. And the only problem is that would have had to have been brought before a single-judge district court.

Despite Robert’s openness to Kagan’s approach, or a requirement that Cruz restart his challenge in the trial courts, he was the only conservative justice to express any opposition to Cruz’s lawsuit. It therefore appears very likely that the Supreme Court is about to allow unlimited repayment of loans—with unlimited interest—from donor money after an election. In many other contexts, this would be called what it is: bribery.

Affirmative Action

The Supreme Court agreed to take up two cases seeking to eliminate race-based affirmative action in college admissions, an outcome that would overrule the Court’s landmark 2003 decision allowing the practice. The two lawsuits, against the University of North Carolina and Harvard University, were brought by a conservative group called “Students for Fair Admissions.” Despite the name, we do not know what students—if any—are plaintiffs in the lawsuits.

  • Note: Edward Blum, leader of Students for Fair Admissions (SFFA), also backed the challengers of the Voting Rights Act in Shelby v. Holder. He has “orchestrated more than two dozen lawsuits challenging affirmative action practices and voting rights laws across the country,” according to the New York Times.

SFFA argues in both cases that the universities’ consideration of race in admissions violate Title VI, prohibiting discrimination on the basis of race and the Constitution (pdf of UNC case and pdf of Harvard case).

UNC defended its admissions policy, saying that “the admissions office studied various race-neutral alternatives and analyzed their possible effects on the composition of the class. Each time, the University found that no alternative would produce a student body about as diverse and academically qualified as its holistic, race-conscious admissions process.”

Harvard responded in its respective case:

Students for Fair Admissions’ (SFFA’s) petition recycles allegations both courts rejected and offers a thoroughly distorted presentation of the record. For example, SFFA contends that Harvard “automatically” awards “enormous” preferences to all African American and Hispanic applicants and “penalizes” Asian-American applicants and caps their admission. The record and the district court’s findings refute those contentions. Harvard does not automatically award race-based tips but rather considers race only in a flexible and nonmechanical way; consideration of race benefits only highly qualified candidates; and Harvard does not discriminate against Asian-American applicants.

In the last major affirmative action case to reach the Supreme Court, Fisher v. University of Texas, the justices just barely protected the practice in a 4-3 split (Kagan recused herself and Scalia had died shortly before the rendering). Roberts, Thomas, and Alito all dissented and would have banned affirmative action in admissions policies. With this in mind, it is likely the Supreme Court will side with SFFA in a 6-3 ruling.

Impact of affirmative action:

Natasha Warikoo, a sociology professor at Tufts University and an expert on racial on ethnic inequality in education, wrote in the Washington Post that affirmative action:

  • provides more equitable opportunities for a top-notch college education. “The average White family today holds more than $170,000 in net assets, compared with just $17,000 for the average Black family.”
  • benefits all students by exposing them to diverse perspectives on campus. “Experiencing a diverse student body in college is associated with having diverse friendships, greater civic engagement and positive racial attitudes many years after graduation.”
  • leads to more-diverse leadership, which is essential for sound decision-making and legitimacy. “[N]ational unity and effective governance required that people of all racial groups should see themselves in the leadership of the country, which signals that people like them are included in social opportunities.”

Furthermore, numerous studies have shown that colleges with affirmative action policies have a higher percentage of students of color.

At Harvard, specifically, “the proportion of African American students would be expected to drop from 14% to 6%, and the proportion of Hispanic or Other students would be expected to drop from 14% to 9%” without a “race-conscious admissions program” (pdf).

The Thomases

Justice Clarence Thomas has been a steadfast foe of affirmative action for the entirety of his time on the bench. During Fisher v. University of Texas’s first visit to the Supreme Court, in 2013 (pdf), he wrote that “the argument that educational benefits justify racial discrimination was advanced in support of racial segregation in the 1950’s.” Race can only be taken into account, he says, when necessary to “provide a bulwark against anarchy, or to prevent violence.”

New Yorker: Much of Thomas’s skepticism flows from his rejection of diversity writ large. The key argument for affirmative action—and the grounds for the Court’s landmark 1978 decision in University of California v. Bakke, which declared the policy constitutional—is that diversity has an educational benefit: students will be exposed to different views and voices, which will challenge their beliefs. Thomas doesn’t quite buy this. If it were truly the case that diversity is a critical educational good, he thinks, élite institutions would stop prizing selectivity…Diversity, in other words, does not benefit students academically, or even produce diverse leadership; it just helps beautify “classroom aesthetics,” which are critical to the self-image of the ruling class.

His wife, Ginni Thomas, sits on the advisory board of a conservative organization that is backing SFFA’s anti-affirmative action lawsuit.

Ginni began working for the Heritage Foundation, a conservative DC think tank, in 2000. She then started a nonprofit lobbying group, Liberty Central, to organize conservative activists and support Tea Party candidates.

“I am an ordinary citizen from Omaha, Neb., who just may have the chance to preserve liberty along with you and other people like you,” she said at a [2010] panel discussion with tea party leaders in Washington. Thomas went on to count herself among those energized into action by President Obama’s “hard-left agenda.”

She has been featured on Fox News, served as a special correspondent for The Daily Caller, and as an advisor to Turning Point USA.

Ginni not only supported Trump’s 2016 and 2020 campaigns, she cheered on the January 6th insurrectionists and attacked the House Committee investigation. On the 6th, Ginni posted links to watch the “MAGA crowd” descend on the Capitol, adding: “GOD BLESS EACH OF YOU STANDING UP or PRAYING!”

Last year, she signed a letter denouncing the Jan 6th Committee for “political harassment and demagoguery.”

The actions of Reps. Cheney and Kinzinger on behalf of House Democrats have given supposedly bipartisan justification to an overtly partisan political persecution that brings disrespect to our country’s rule of law, legal harassment to private citizens who have done nothing wrong, and which demeans the standing of the House…We ask that the GOP conference meet immediately to vote on stripping Reps. Cheney and Kinzinger from their membership in the GOP conference.

Less than a month later, Justice Thomas was the only judge on the Court to say (pdf) he would grant Trump’s request to shield his White House records from the Committee.