The Supreme Court’s defense of the Voting Rights Act offers a slim hope that Justice John Roberts, and perhaps Justice Brett Kavanaugh, will not go to extremes in an upcoming redistricting case, which has the potential to destabilize the electoral system.
If Roberts and Kavanaugh do step back from the brink in Moore v. Harper—and they may not—there’s a decent chance that the reasons they give will be similar to those offered in Allen v. Milligan.
In Roberts’s view, the district court, which laid out its “careful factual findings” in a two-hundred-and-twenty-five-page opinion, did everything right. “The Court faithfully applied our precedents and correctly determined that, under existing law, HB1 violated §2,” he wrote. The key precedent was Thornburg v. Gingles, a 1986 case that offered a model for interpreting Section 2, as it had been amended by Congress in 1982.
Roberts is still the Justice who wrote Shelby. At the very end of this opinion, he writes that the concerns about race being used as a basis for districting in any sense are not new, adding, “Our opinion today does not diminish or disregard these concerns. It simply holds that a faithful application of our precedents and a fair reading of the record before us do not bear them out here.
The discussion about the simulated maps is an unexpectedly intriguing aspect of Milligan. It gives a glimpse of the questions the Court may have to grapple with as artificial-intelligence tools evolve. Could a chatbot that generates the false texts that are known as A.I. “hallucinations” make a statement about some aspect of the judicial or electoral process and convince people that its version of reality is correct? A fairness algorithm is hard to write.
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