XPost: alt.politics.elections, alt.politics.republicans, ny.politics   
   XPost: sac.politics   
   From: dei@fired.com   
      
   Every now and then, a judge hands down a decision that is so ill-advised   
   that it is impossible to read without burying your face in your palm. New   
   York State Judge Jeffrey Pearlman’s opinion in Williams v. Board of   
   Elections of the State of New York is such a case.   
      
   Pearlman’s opinion is so out of step with the current US Supreme Court’s   
   approach to racial gerrymandering cases — the Court’s Republican majority   
   opposes nearly all laws that are race-conscious in any way — that it is   
   hard to imagine it surviving on appeal.   
      
   But the case also gives the Supreme Court’s Republican majority a vehicle   
   that they could potentially use to accelerate one of their major policy   
   initiatives — eliminating the federal Voting Rights Act’s safeguards   
   against gerrymandering, and permitting Southern red states to draw GOP-   
   friendly maps that are currently still illegal.   
      
   For four decades, the Supreme Court has read the Voting Rights Act to   
   sometimes require states where racial minority groups have little   
   representation in Congress or the state legislature to draw new   
   legislative maps that will elect more candidates of color.   
      
   The rules governing when states must redraw their maps, which were first   
   laid out in the Supreme Court’s decision in Thornburg v. Gingles (1986),   
   are sufficiently complicated that they cannot be summarized concisely.   
   But, as a general rule, Gingles kicks in when a state is residentially   
   segregated by race, and when voters in that state are racially polarized —   
   typically meaning that white voters strongly prefer candidates from one   
   party, while nonwhite voters prefer candidates from the other party.   
      
   In those circumstances, Gingles can require a state to draw additional   
   districts where a racial minority group is in the majority, to ensure that   
   group has adequate representation.   
      
   The practical effect of Gingles is that red states with a white majority   
   sometimes have to draw additional Black or Latino districts that elect   
   Democrats. Unsurprisingly, Gingles is not beloved by the Supreme Court’s   
   Republican majority. The Court is widely expected to toss out Gingles in a   
   case known as Louisiana v. Callais, which the justices heard last October.   
      
   Yet, because the Court typically does not release its most contentious   
   decisions until late June, Callais will most likely not come down until   
   well after the 2026 midterm election cycle has already begun. So red   
   states that want to draw new, more Republican maps — but that have been   
   prevented from doing so by Gingles — may not be able to draw those maps   
   until the 2028 election cycle.   
      
   However, the Williams case presents a very similar legal question to   
   Callais. And, unlike Callais, Williams reached the Supreme Court on its   
   “shadow docket,” a mix of emergency motions and other matters that the   
   justices often decide on a very tight timeframe.   
      
   By ordering a Republican congressional district redrawn, in other words,   
   Pearlman gave the Supreme Court’s Republican majority a case they can   
   potentially use to get rid of Gingles several months ahead of schedule —   
   potentially giving several red states the time they need to redraw their   
   maps before the 2026 midterms get fully underway.   
      
   In her brief to the justices, Rep. Nicole Malliotakis (R-NY), whose   
   district is at the center of Williams, also urges the Supreme Court to   
   embrace a dubious legal theory that would give the Republican justices   
   sweeping authority over federal election-related legal disputes that arise   
   under state law. Currently, questions of state law are decided by state   
   courts, not the US Supreme Court.   
      
   So what is the specific legal issue in Williams?   
   Malliotakis’s district includes Staten Island and some parts of southern   
   Brooklyn. The district leans significantly to the right — Malliotakis won   
   her 2024 race with 64 percent of the vote — but Democrats can win it in an   
   unusually strong election year. Former Rep. Max Rose (D-NY) won the   
   district in 2018, but lost his reelection bid in 2020 to Malliotakis.   
      
   Pearlman’s opinion concludes that this district must be redrawn by the   
   state’s redistricting commission because, as it is currently configured,   
   the district violates a provision of the New York Constitution that   
   closely tracks the federal Voting Rights Act.   
      
   But Pearlman interpreted this provision of the state constitution more   
   aggressively than the Supreme Court had interpreted the Voting Rights Act,   
   even back when the Court had a pro-Gingles majority. In Bartlett v.   
   Strickland (2009), the Supreme Court held that Gingles does not require   
   states to draw new “crossover districts,” where minority voters are able   
   to combine their votes with similarly minded white voters to elect their   
   candidate of choice.   
      
   Nevertheless, Pearlman held that New York’s constitution goes further than   
   the Voting Rights Act, and that Malliotakis’s district must be redrawn as   
   a crossover district. The practical effect of this decision would be to   
   convert this fairly red district into one that leans toward Democrats,   
   because voters of color in New York tend to prefer Democratic candidates   
   to Republicans.   
      
   But even if Pearlman is correct that New York law requires crossover   
   districts, even when federal law does not, his decision has little chance   
   of surviving contact with the Supreme Court. The Court’s Republican   
   majority is broadly skeptical of any legal theory that requires   
   legislative districts to be redrawn in order to change their racial makeup   
   — that’s why they are expected to toss out Gingles in the Callais case.   
   The premise of Pearlman’s decision is that New York law requires state   
   courts to redraw at least some legislative districts for racial reasons,   
   even when federal law does not require that outcome. It is difficult to   
   imagine a legal argument better calibrated to provoke the Supreme Court’s   
   Republican majority.   
      
   There is a chance that New York’s own courts will make the Williams case   
   go away before the Supreme Court decides it. Malliotakis has also asked a   
   state appeals court to intervene, and if that court blocks Pearlman’s   
   order, there will be no need for the federal justices to get involved.   
      
   But if the state courts do not act quickly — Malliotakis asked the Supreme   
   Court to weigh in by February 23 to prevent Pearlman’s order from   
   disrupting the upcoming primary and general elections — then it is very   
   likely that this Supreme Court will reject Pearlman’s approach. In the   
   worst-case scenario for Democrats, that Supreme Court decision could also   
   repudiate Gingles, which would free up many red states to draw   
   gerrymandered maps for the 2026 election that are illegal under current   
   law.   
      
   A New York judge’s decision that would increase Democratic representation   
   in Congress, in other words, could have the ironic effect of increasing   
   Republican representation in the US House.   
      
   Malliotakis also asks the Court to embrace a repeatedly rejected legal   
   theory   
      
   [continued in next message]   
      
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