A New Era of Open Defiance

When, earlier this year, Alabama simply refused to draw congressional maps that complied with a federal court order, the decision looked like an outlier—a disturbing one, but an outlier nonetheless. Now it’s starting to look more like an early warning. On Friday, the Georgia state legislature released maps that appear to defy a federal judge’s ruling. Meanwhile, legislators in Louisiana have had their deadline extended to fix congressional districts that also didn’t pass judicial review.

All three of these states have Republican-led legislatures (and once Louisiana’s new governor is sworn in, next month, it will have GOP executives, too), and all three cases involve maps for U.S. Congress that judges have struck down as unfairly diluting Black voters’ influence under the Voting Rights Act. Because Black voters are heavily Democratic, maps that give them more sway could help decide control of the U.S. House in 2025, so it’s easy to see why Republicans would be unhappy about rules requiring them to alter maps in that way. But their actions have extended beyond expressions of dismay to open rejection.

Alabama’s government lost a set of appeals, and was forced to change its maps. That is a likely outcome in Georgia, and in Louisiana, too, if that state follows the same path. In fact, despite years of damage to the Voting Rights Act, federal courts have been surprisingly receptive to claims that gerrymandered maps disadvantage Black voters. (A recent appeals-court decision dealt yet another blow to the VRA, although it’s unclear whether the Supreme Court will uphold it.)

[Adam Serwer: Alabama strikes out]

But the defense of voting rights by federal courts shouldn’t instill a great deal of confidence. That state politicians now see incentives to defy federal-court orders, for whatever reason, poses a danger to national unity, the rule of law, and, ultimately, the Constitution.

Georgia’s legislators are hoping to get by on a technicality. In October, U.S. District Court Judge Steve Jones ordered revisions to the state’s maps, which are likely to give Republicans nine seats to Democrats’ five. He said the court would enact maps if the general assembly didn’t comply.

Republican lawmakers redrew the maps, but the new versions still have nine majority-white districts. Instead, it adds a fourth majority-Black district by changing a district currently held by Representative Lucy McBath, a Black Democrat. Legislators say this does the trick, but Charles Bullock, a redistricting expert at the University of Georgia, told The Atlanta Journal-Constitution that they were ignoring the lessons of the Alabama case. “Slow learners, I guess,” he said. “They’re willing to take a risk of the judge stepping in and having someone draw the congressional maps.”

[Adam Serwer: The decision that could end voting rights]

Louisiana lawmakers are still struggling to come up with their own revised map. Their prior draft made five of the state’s six districts majority-white, even though the state is almost 33 percent Black. If no new map meets the requirements, the judge could impose one there, too.

What exactly is going through legislators’ minds is not always clear. In Alabama, as my colleague Adam Serwer wrote in September, Republicans made plain that they hoped they could push their case to the U.S. Supreme Court, where they believed conservative justices were itching for a chance to further weaken the VRA. But a bare 5–4 majority rejected that ploy. When legislators decided to dig in their heels, the case again made it to the Supreme Court, which quickly rebuffed Alabama, this time with no dissents. No matter how hostile the Court’s conservative majority is to voting rights, it couldn’t countenance such open flouting of federal courts.

Lawmakers elsewhere could have different motives for defying the courts. New maps are always a contentious, dirty business, because they mean changing districts that belong to incumbents, who never like that, and who are frequently the friends and colleagues of the people drawing the maps. It’s easier to punt the job to a federal judge and make him the bad guy. Or perhaps, more worryingly, legislators are pandering to voters. They know full well that they don’t have a legal leg to stand on, and they know that the courts will impose maps, but they’d rather be caught trying and give base voters the impression that they’re fighting.

[Vann Newkirk II: The Voting Rights Act hangs by a thread]

The reasons only matter so much, though. Regardless of why legislatures are defying courts, the implications are bleak. In recent decades, one basic political rule has been that openly flouting federal courts is not a wise political move. That could be changing, as former President Donald Trump’s tension with federal judges and the Justice Department in his own legal cases demonstrates. The situation would become more dangerous if Trump is reelected. As President Andrew Jackson is said to have noted, the Supreme Court has no independent enforcement capacity, and relies on the executive branch for that. Would a second-term Trump bother forcing rogue states to follow court orders that he didn’t like?

If defiance of federal courts is resurgent, it is not new. You don’t have to look too far for antecedents in the very same places: Governor George Wallace infamously tried to physically block a door at the University of Alabama, in defiance of federal desegregation orders; in Georgia, Lester Maddox was elected governor on the strength of having refused to integrate his Atlanta restaurant. And this month’s print edition of The Atlantic, devoted to post–Civil War Reconstruction, is a reminder of an earlier moment in which states bitterly fought against federal efforts to guarantee the rights of Black people.

[Peniel E. Joseph: How Black Americans kept Reconstruction alive]

The current and historical examples I cite here all involve Black rights threatened by conservative governments in the South, but it doesn’t take a great deal of creativity to imagine progressive states adapting the move for their own priorities. California or Massachusetts could pass a strict gun law and attempt to keep it in place even if federal courts rejected it. Because the federal government is the ultimate guarantor of many of our most basic rights as citizens, a world in which states feel entitled to thumb their nose at the federal courts is one in which our basic rights are not safe.