What the Supreme Court’s Next Term Could Mean for the Future of Voting Rights and American Democracy

Last updated September 15, 2022

Authors: Catherine Rowland, Legislative Affairs Director (catherine@progressivecaucuscenter.org); 

Graham Steinberg, Executive and Operations Assistant (graham@progressivecaucuscenter.org)

overview

The Supreme Court is slated to hear two cases in late 2022 that will have profound implications for fair representation, the right to vote, and the future of American democracy: Merrill v. Milligan and Moore v. Harper. The Court’s decisions in these cases could together determine the extent to which racial discrimination in redistricting is prohibited and whether there can be any safeguards against partisan state legislatures seeking to cement their hold on power. This explainer analyzes the background of each case, their potential outcomes, and the ensuing ramifications for our country’s democracy.

Merrill v. Milligan

On October 4, 2022, the U.S. Supreme Court will hear oral arguments in Merrill v. Milligan. This case could have major ramifications for the congressional redistricting process and represents the latest in a long series of attacks on the Voting Rights Act of 1965 (VRA).

The case arose during the 2021 redistricting cycle that followed the 2020 Census, when a coalition of Black voters, Alabama-based advocacy organizations, and voting rights groups challenged the congressional map approved by the Alabama state legislature. The plaintiffs argued that certain districts violate Section 2 of the Voting Rights Act and the Fourteenth Amendment of the U.S. Constitution by packing many of the state’s Black voters into a single congressional district and, accordingly, diluting their voting power. Section 2 of the VRA prohibits voting practices and procedures, including redistricting, that discriminate on the basis of race. 

Since 1993, Alabama has had roughly the same congressional map with only a single minority opportunity district—that is, a district in which minority populations have a greater chance to elect the candidates they choose—even as the state’s white population continues to decline and white voters have elected officials that act against the interests of Black communities. Given the size of Alabama’s Black population, the existence of racially polarized voting, and a long history of discrimination against the Black communities in the state, the challengers argue that there should be two Black opportunity districts.

Legal experts argue that Merrill v. Milligan could become part of a continued effort to dismantle portions of the Voting Rights Act through the courts. This decades-long trend accelerated in 2013 with Shelby County v. Holder. In that 5-4 decision, the Supreme Court struck down Section 4(b) of the VRA, which established the criteria that subjected certain jurisdictions to “preclearance.” Preclearance required that jurisdictions with histories of discriminatory voting practices submit any proposed election law or practice to a federal court or the Department of Justice for review to ensure that it was not discriminatory. It was considered a crucial feature of the Voting Rights Act because it stopped discriminatory policies before they could take effect. The VRA was further weakened by the Supreme Court in Abbott v. Perez in 2018 and Brnovich v. DNC in 2021.

The 2021 redistricting cycle became the first since the initial passage of the Voting Rights Act more than 50 years earlier to be conducted without preclearance safeguards. As such, jurisdictions that were previously required to submit district maps for federal review, including Alabama, were instead able to enact new congressional maps that took effect immediately. This resulted in what POLITICO’s Zach Montellaro described as a “shift from preemptive checks on election laws to after-the-fact challenges.”

What has happened so far in Merrill v. Milligan?

As in most states, Alabama’s legislative maps are drawn by the state’s partisan legislature. In November 2021, Governor Kay Ivey (R) signed the bills establishing the state’s new maps on both the federal and state levels. The following day, a lawsuit was filed by attorney Marc Elias, founder of Democracy Docket, alleging the maps violate Section 2 of the Voting Rights Act. A week later, a second lawsuit making similar allegations and raising constitutional claims was filed by the NAACP Legal Defense Fund and the ACLU.

In January 2022, a three-judge panel composed of Eleventh Circuit Senior Judge Stanley Marcus (appointed by President Clinton) and District Court Judges Terry F. Moorer and Anna M. Manasco (both appointed by President Trump) ruled that Alabama’s districts did violate the Voting Rights Act and, as such, had to be redrawn for the 2022 midterm election. In a 225-page ruling, the panel found that “Black voters have less opportunity than other Alabamians to elect candidates of their choice to Congress” and that they “will suffer an irreparable harm if they must vote…[under] a redistricting plan that violates federal law.”

After the panel turned down Alabama’s request to put the order on hold, the state appealed the matter before the U.S. Supreme Court. On February 7, 2022, in a 5-4 decision, the Court granted Alabama’s request to set aside the ruling and called for oral arguments in the fall to reexamine the relevant standards for Section 2 litigation going forward. This ensured that the current map, found by the panel to be racially discriminatory, would be used for the upcoming midterm elections. The majority of the Supreme Court thereby determined that they will revisit the VRA framework as it applies to redistricting and that it was too close to the 2022 midterm election for new maps to be drawn—despite the fact that the election was nine months away. 

Since that unprecedented decision, similar reasoning has been used by various courts in cases in Georgia, Louisiana, Ohio and Florida. A dissent authored by Justice Elena Kagan and joined by Justices Stephen Breyer and Sonia Sotomayor criticized this argument, contending, “Alabama is not entitled to keep violating Black Alabamians’ voting rights just because the court’s order came down in the first month of an election year.” Notably, had the VRA’s preclearance requirement still been in place, the map’s discriminatory effects would have been assessed before districts could be used in elections. This could have avoided the timing issues the Court’s majority cited to allow discriminatory maps to remain in place.

How could the Supreme Court’s ruling in Merrill v. Milligan affect the redistricting process and the requirements of the Voting Rights Act?

Merrill v. Milligan does not exist in a vacuum: the case fits into a concerted effort to dismantle the remaining protections of the Voting Rights Act. With Shelby County v. Holder ending preclearance and Abbott v. Perez giving lawmakers what Vox’s Ian Millhiser called “a strong presumption of racial innocence,” there is already little left remaining in the law to prevent discrimination in the voting process. The law’s Section 2 protection for minority voters in the redistricting process is one of the last provisions that is still intact from the 1982 reauthorization of the VRA. 

Alabama officials have suggested that they aim to remove any consideration of race from the redistricting process. They argue that maps should be “race-blind” and that mapmakers should only look at demographic data once districts have been drawn. In an interview with NPR, State Senator Jim McClendon—who serves as chair of Alabama’s redistricting committee—stated:

We drew the districts race blind…We didn't have race up there because we couldn't. You're not supposed to use race. Voting Rights Act tell you very clearly (sic). You can't use race in doing this.

If the Supreme Court were to adopt Alabama’s reading of the Voting Rights Act, it would allow states to draw districts that disadvantage people of color and make it harder for them to coalesce around a candidate of their choice, as long as the mapmakers can state a race-neutral explanation for doing so.

Moore v. Harper

The U.S. Supreme Court announced on June 30, 2022 that it would take up Moore v. Harper during its upcoming term. This case arose after the North Carolina supreme court struck down the legislature’s proposed congressional map for violating several provisions of North Carolina’s constitution. Republican state legislators appealed the ruling to the U.S. Supreme Court, asking the Court to weigh in on whether the U.S. Constitution’s Elections Clause permits the North Carolina supreme court to strike down the legislature’s map on state constitutional grounds. This is the question the Supreme Court will now consider during its 2022-2023 term.

At the heart of this case is the question of whether legislatures are subject to the normal checks and balances that have historically applied to them when making laws for federal elections. If the Supreme Court embraces the legislators’ theory, it could eliminate the ability of state courts to invalidate laws for federal elections that violate the state’s constitution. It would also strip governors of their power to veto those same laws. This, as the Huff Post reports, “would wipe out the last remaining protection available against extreme partisan gerrymandering and greatly increase the ability of state’s (sic) to adopt highly restrictive voting laws.”

What are the stakes in Moore v. Harper? 

The questions before the Supreme Court in Moore v. Harper are based on a fringe legal theory called “independent state legislature doctrine” (sometimes referred to as “independent state legislature theory”). According to legal scholars Leah Litman and Katherine Shaw, this theory “holds that the federal Constitution gives to state legislatures, and withholds from any other state entity, the power to regulate federal elections.” The theory has been widely discredited as ahistorical, lawless, and nonsensical. Since the Supreme Court announced its plans to consider Moore v. Harper, numerous legal experts have issued grave warnings concerning the case’s potential implications. 

Any ruling affirming the notion that state legislatures have sole authority over federal elections would cause chaos. Election administrators could be forced to adopt two sets of election policies—one for state and local elections, and one for federal elections. Theoretically, in a single state, early voting could be allowable for state and local elections but not for federal elections. This kind of outcome would undoubtedly make elections more costly to administer and more confusing for administrators and voters alike. 

Much of the concern regarding this case, however, has focused on its implications for partisan gerrymandering and election integrity. In its 2019 decision on Rucho v. Common Cause, the Supreme Court ruled that federal courts do not have jurisdiction over these incidents of partisan gerrymandering. As a result of Rucho, partisan gerrymandering cases can only be considered by state courts or addressed through federal legislation (i.e., Congress must pass a law banning partisan gerrymandering). If the Supreme Court was to affirm the independent state legislature theory and decide that state courts have no authority to strike down the laws state legislatures make for federal elections—which include the lines they draw for congressional races—there would be no remaining forum for challenging partisan gerrymanders. Therefore, if the Supreme Court decides that state courts cannot invalidate partisan gerrymanders, it will consequently give partisan state legislatures carte blanche to draw electoral districts that solidify their parties’ power over their congressional delegations and dilute voters’ ability to choose representatives outside of that party.

The only way to address this injustice would then be for Congress to pass and for the President to sign legislation outlawing partisan gerrymandering. In January 2022, lawmakers sought to pass the Freedom to Vote: John R. Lewis Act, which, among numerous other policies, would have banned partisan gerrymandering. However, this bill failed to advance in the Senate and is unlikely to pass during the current Congress unless the Senate eliminates the filibuster, which functionally requires 60 votes for most major legislation. 

Another alarming potential outcome concerns the ability of state legislatures to interfere with the results of a federal election. Under the independent state legislature theory, votes cast in a manner not explicitly authorized by the state legislature—for example, through early voting procedures put in place via a ballot initiative—would be open to legal challenges in federal court. Candidates could pursue such challenges in an effort to invalidate votes cast in favor of their opponent, and, if successful, could block the candidate who received the most votes from taking office. In the wake of the 2020 election and the ensuing lies concerning its outcome, such scenarios are not farfetched—indeed, versions of this approach were tried in Pennsylvania in 2020.

Conclusion

The Supreme Court decisions for Merrill v. Milligan and Moore v. Harper may not be expected until June 2023, but their tremendous importance to the fairness of elections and the future of the American system of government demands immediate attention. Rulings that greenlight racial discrimination in redistricting or confer new powers over federal elections upon partisan state legislatures would make it harder for Americans to express their preferences at the ballot box. These cases offer the Court an opportunity to reject unprecedented interpretations of the law and, instead, affirm the rights of all voters to choose their elected representatives at a pivotal moment for American democracy.   

The authors thank the Leadership Conference on Civil and Human Rights and the Brennan Center for Justice for their comments and insights.