In its most recent term, the U.S. Supreme Court decided a flurry of highly consequential and hotly discussed cases. From LGBTQ+ rights to affirmative action to student debt relief, the Court weighed in on issues of grave concern for Americans nationwide. Two cases in particular, Allen v. Milligan and Moore v. Harper, threatened to diminish the power of Black voters and reshape state legislatures’ role in federal elections.
In Allen, voters and pro-voting groups sued over Alabama’s congressional map, arguing that the map diluted the voting strength of Black Alabamians, therefore violating Section 2 of the Voting Rights Act (VRA). In a 5-4 ruling, the Court struck down the map, leaving Section 2 in place and forcing Alabama to redraw its maps to include a second Black-majority district.
Moore also started off as a challenge to a gerrymandered congressional map put in place by Republicans, this time in North Carolina. After the state Supreme Court blocked the map, Republicans appealed the decision to the U.S. Supreme Court, invoking the radical independent state legislature theory to argue the state court violated the U.S. Constitution. At the very end of its term, in a 6-3 ruling, the Court ultimately ruled against the legislators and rejected the theory, which would have granted state legislatures free reign to enact maps and regulate federal elections.
In doing so, the Court handed down rulings in favor of the progressive causes in both voting cases. Yet progressive litigants in the vast majority of the other highly consequential and polarized cases did not face the same fate. During its final week, in decision after decision, the Court ended affirmative action, blocked President Joe Biden’s student loan forgiveness plan and permitted certain businesses to refuse service to LGBTQ+ people.
In exploring the apparent divergence between the rulings in voting and non-voting related cases before the Court this term, Democracy Docket spoke to elected officials, political and legal experts, activists and litigants about what they made of this divergence, what could be behind it and what the Court’s ruling in Allen and Moore might mean for voting rights and elections cases going forward.
Experts, advocates and elected officials offered various theories for the Court’s election decisions.
When asked why many of the Court’s conservative justices sided with the three liberals in the voting and election cases, reactions were mixed. Some felt that the voting rights and elections cases were simply too extreme, even for an extremely conservative Court. U.S. Rep. Hank Johnson (D-Ga.) told Democracy Docket that the Moore case was “so outlandish” that the Court “summarily disposed of it once and for all.” Rebecca Buckwalter-Poza, of the progressive judicial advocacy group Alliance for Justice, similarly described the cases as “pretty extreme outliers in the genre of voting and democracy cases.” In a statement to Democracy Docket, U.S. Sen. Sheldon Whitehouse (D-R.I.) was blunt, saying: “A few of the FedSoc justices evaded truly wingnut legal theories in Moore v. Harper or blatant racial gerrymandering in Allen v. Milligan.”
Others hypothesized that the Court made a strategic decision, deciding these two cases with public opinion in mind. Recent polling shows the Court has historically low job approval, with Quinnipiac University reporting that the Court is 20 points underwater among voters. Buckwalter-Poza argued that the Court “realizes it is facing a major legitimacy crisis” and that factored into the decisions, an idea echoed by Neil Malhotra, a political economy professor at Stanford University. In a statement to Democracy Docket, Malhotra focused on the strategy employed by Chief Justice John Roberts and Justice Brett Kavanaugh, arguing that the justices “care very much about issues like affirmative action and religious liberty, so they maybe need[ed] to find other issues where they are more willing to compromise on.”
However, some disagreed with the public opinion argument. Bill Myers, a political science professor at the University of Tampa, felt that the argument suggesting the Court moderated on voting rights and election cases to placate those on the liberal or progressive side of the ideological spectrum was more of a “knee-jerk reaction.” He pointed out that it isn’t clear why the Court would choose these cases to “moderate on,” but admitted that “the theory advanced in Moore v Harper is an extreme and wacky idea.”
There was also a line of thinking that the Court acted this way to slow the growing momentum we have seen to reform the Court. Whitehouse, a leading proponent of court reform in the Senate, made clear that: “these cases did nothing positive, merely reverting to status quo as a realpolitik maneuver by justices trying to avoid additional criticism and calls for reform.” A recent poll by Fix The Court, a nonpartisan group that advocates for changes to federal courts, revealed that the demand for Supreme Court reform is high, with a significant majority of voters supporting term limits and a binding code of ethics for the Court. Chelsey Davidson, policy counsel for Take Back the Court, which advocates for Supreme Court expansion, agreed with Whitehouse, saying the Court simply employed a strategy to “quell the growing momentum behind the movement” to reform the Court.
The Court’s threat to democracy remains real, despite its rulings in Allen and Moore.
The decisions in Allen and Moore were generally viewed as a positive for progressives and pro-democracy forces. Although the Court just preserved the status quo, it didn’t break democracy, something many observers cautioned could very well happen. Abha Khanna of Elias Law Group, who litigated both cases before the Court on behalf of voters, said, “I think we learned this term that the Court is hesitant to upend established precedent as our democracy navigates this turbulent moment, even as they show a willingness to do so in other areas of the law.” Michael Morse, a law professor at the University of Pennsylvania, described the decisions as “a relief for democracy.”
Myers told Democracy Docket that progressives should celebrate the decisions, but pointed to the fact that “there are clearly 3-4 justices that would have gone an entirely different way.” On whether or not to cheer on these decisions, Christopher Kang of Demand Justice, a court reform advocacy group, cautioned: “Celebrating the justices for these decisions is like seeing someone has broken into your home and taken most of your possessions then celebrating that they left you with anything at all.”
Although many differed on how to characterize the significance of the two election cases, there was unanimous agreement that the war for voting rights and democracy is ongoing, and the threat to democracy from the extremely conservative Supreme Court remains real.
In particular, many focused on the future of the VRA. Johnson cautioned that “cases are being teed up to be in front of the Supreme Court in the future… giving the Court the opportunity to eviscerate… Section 2.” Malhotra similarly advised that he “would not be confident that the VRA would get as much protection in the future, since it would depend on what the docket looks like.” Rick Pildes, a law professor at New York University, specifically highlighted that “Alabama’s challenge to the VRA in this case was a particularly weak one; it’s possible other challenges might be more successful.” In fact, the Court has already been asked to hear Simpson v. Hutchinson, another Section 2 case that focuses on the “cracking” of Black voters in Arkansas’ congressional map.
The decision in Allen surprised some observers, given the court’s hostility to the VRA in previous years. After all, Roberts, who wrote the Allen decision, was the same justice who authored the infamous Shelby County v. Holder decision that struck down Section 5, the preclearance section, of the VRA. Gabe Roth, the executive director of Fix The Court, offered one explanation: the facts in this case simply did not provide a solid pathway for the Court to strike down Section 2, as much as they may want to.
While the Supreme Court didn’t rip apart voting rights and fair elections this term, there’s no reason to get complacent. Morse warned that “both opinions… invite further litigation that might undo any temporary relief.” Jeff Wice, a New York Law School professor similarly advised, “only the battle was won.” As far as the war, pro-democracy forces need to “continue bringing these kinds of lawsuits” and encourage states to also enact state-level VRAs “like we have now in California, New York and Connecticut.”
As we look toward 2024, Roth had a special message for Democracy Docket: “You, my friend, will be very busy at Democracy Docket over the next couple of years, parsing these types of cases. So this is not the end.”