How Election and Redistricting Lawsuits End up Before the Supreme Court

By Democracy Docket

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Each year, the U.S. Supreme Court is asked to review over 7,000 cases, but only agrees to hear approximately 70-80 cases in a given term. This translates to the Court only hearing about 1.14% of the total cases it is asked to take up each year. An even smaller proportion of the cases that the Court reviews each term falls into the category of voting rights, elections and redistricting litigation.

From determining the electoral districts under which voters will be represented to deciding which voting laws pass constitutional muster, the Supreme Court’s election-related jurisprudence is extraordinarily consequential for voters across the country. There is no doubt that on the rare occasions when the Court agrees to weigh in on an election-related case, voters and democracy will be impacted. However, voters are more often affected by the Court’s proclivity for inaction. By frequently declining to hear most voting cases that are appealed to the Court, the justices allow numerous lower court decisions to remain in place that either adversely or positively affect the electorate.     

Below, we explain how redistricting and election-related lawsuits end up before the nation’s highest court and describe the procedures and processes through which the Court either accepts or declines to hear these cases.

Petitions for a writ of certiorari are the primary means through which litigants seek Supreme Court review.

If a party in an election or redistricting lawsuit is dissatisfied with a final decision issued by a federal appeals court or a state Supreme Court, it can ask the U.S. Supreme Court to review the merits of the case by filing a petition for a writ of certiorari (“cert petition”) within 90 days of the decision. Unlike intermediate appellate courts that are required to hear cases on appeal, the Supreme Court — in most cases — has discretionary review when deciding whether to take up an appeal. In other words, the Court has the authority to choose which appeals it will consider out of the thousands of petitions submitted to it via a grant or denial of certiorari. Voting cases over which the Court has discretionary review often involve claims under federal statutes such as the Voting Rights Act (VRA) and provisions of the U.S Constitution.

After a party files a cert petition, the petition is ultimately “distributed” among the justices and considered at a private “conference.”

After a party submits a cert petition to the Court, the opposing party has the option to file a response in opposition to the petition, submit a notice waiving its opposition or take no action. Sometimes, the Court will request that the opposing party file a response to the petition. After the response is filed, the petitioning party will usually file a reply brief in support of its cert petition urging the Court to review the case. During the briefing process, non-parties called “amici curiae” or “friends of the court” will sometimes submit briefs in support of either side. 

At least 14 days after the brief in opposition to the cert petition is complete, the petition will typically be “distributed for conference.” This means that the petition will first be “distributed” among the justices’ chambers before ultimately being considered at a private meeting called a “conference” on a date designated by the Court.

Seven of the nine justices — excluding Justices Samuel Alito and Neil Gorsuch — participate in a system known as the “cert pool.” Under the cert pool system, law clerks for each of the seven participating justices are assigned a batch of cert petitions and are tasked with drafting a “pool memo.” The pool memo contains a summary of a particular cert petition and a recommendation as to whether or not certiorari should be granted. These memos are then circulated among the other justices and clerks in the pool for review.

Meanwhile, law clerks for Alito and Gorsuch — both of whom have opted out of the cert pool — are responsible for reviewing all cert petitions and conferring with their justices about which cases to take up prior to the scheduled conference date.

At the conference, very few petitions are actually deliberated and voted on.

Ahead of the conference, the chief justice collates and internally circulates a “discuss list” of all the petitions he would like to deliberate and vote on at the conference. The other justices add to this list any other petitions they would like to discuss. The justices do not generally discuss petitions unless a response to the petition has been filed. Thus, if no response has been filed and no justice has requested a response prior to the conference, the petition will likely be denied. Petitions that are not added to the discuss list are denied after the conference, without any further discussion or vote from the justices.

Sometimes, the Court will reschedule a petition from one conference to another if a justice wants additional time before discussing the petition. Similarly, the Court will sometimes relist a petition that has already been discussed for further consideration at a future conference. The Court often relists petitions that it plans to grant at least once before granting them, to allow the Court to double check for any problems before the petitions are granted.

At conference, it requires votes from four out of the nine justices to grant review of a case under the unwritten “rule of four.” While granting a petition, the justices might also opt to modify or entirely rewrite the question presented to the Court in the petition.  

According to the Court’s website, the Court’s decision to grant or deny a cert petition “discussed at a particular conference [is] announced in an order list that is issued at 9:30 am on the Monday after that conference.” Occasionally, one or more justices will pen a dissent in light of the Court denying certiorari in a certain case, but most denials are issued on an unsigned order list. If certiorari is granted, the petitioners and respondents file briefs and the Court schedules the case for oral argument.

What is the “long conference”?

While distribution and conference dates occur numerous times throughout the Court’s term, the Court holds what is known as the “long conference” prior to the commencement of its term on the first Monday in October. Usually held towards the end of September, the long conference is a private meeting in which the justices review all the cert petitions that have accumulated since the end of the Court’s previous term at the end of June. At the long conference, the justices choose to review just a small fraction of the approximately two thousand petitions and motions that were filed over the summer.

In certain redistricting cases, the Supreme Court must take some sort of action on appeal.

Under federal law, certain redistricting cases involving constitutional claims are directly appealable to the Supreme Court.

In a limited set of cases involving redistricting, the U.S. Supreme Court lacks discretion over whether to review a case and is instead required to accept an appeal. As prescribed by current federal law, any case that challenges the constitutionality of a congressional or state legislative apportionment plan is required to be heard by a federal three-judge panel rather than a single district court judge. Under the relevant law, at least one of the judges must be a federal appeals court judge from the circuit that includes the court in which the case was filed.

A separate federal law states that any decision from a three-judge panel is appealable directly to the Supreme Court — and the Court has to accept the appeal and rule on the merits. While the Court does not necessarily have to hold a hearing or oral argument, it does have to make a final decision. The Court may opt to summarily affirm or reverse the three-judge panel’s decision or dismiss the appeal altogether in lieu of setting full merits briefing and holding oral argument. When a case is “summarily disposed of,” the Court issues an unsigned order without comments.

In sum, these two federal laws effectively mean that any time a plaintiff alleges a congressional or state legislative map violates the U.S. Constitution, the Court will eventually decide the outcome if a ruling is appealed.

Redistricting lawsuits alleging racial gerrymandering claims are one type of directly appealable case.

Redistricting cases involving racial gerrymandering claims under the 14th and 15th Amendments of the U.S. Constitution are heard by federal three-judge panels and are directly appealable to the Supreme Court. In its upcoming October 2023 term, the Court will hear oral argument in a Republican appeal of a redistricting case out of South Carolina in which the petitioners allege that a three-judge panel improperly struck down the state’s congressional map for racial gerrymandering. While the Court could have simply affirmed or reversed the three-judge panel’s decision, it instead opted to take the case up for full merits briefing and oral argument on Oct. 11.

When directly appealing a ruling from a three-judge panel, the appealing party files a jurisdictional statement rather than a cert petition.

In a direct appeal of a three-judge panel’s ruling, the appealing party must file a jurisdictional statement rather than a cert petition. Like cert petitions, jurisdictional statements are briefed and subsequently distributed for conference. If five justices agree that the Court has jurisdiction, then unless the Court votes to summarily affirm or reverse, the Court accepts the appeal for merits briefing and oral argument by “noting probable jurisdiction,” rather than “granting certiorari.” Alternatively, the Court can summarily dispose of the appeal on the merits by reversing or affirming the three-judge panel’s decision via an unsigned order.

The Supreme Court has the power to grant emergency relief in time-sensitive situations without granting certiorari and deciding the merits of the case.

Oftentimes in redistricting and election-related litigation, parties will file emergency requests to the U.S. Supreme Court for matters that need to be decided on an expedited timeline. These requests come in the form of applications that go through the Court’s emergency docket, which has been nicknamed the “shadow docket.” Unlike the normal appeals process, cases that go through the Court’s shadow docket do not undergo full briefing or oral argument and are often decided in just a few days or weeks, sometimes by unsigned and unexplained orders.

Emergency applications to the Court often involve a party asking for an emergency stay in order to pause the implementation of a lower court’s decision while an appeal is being litigated. For instance, in a case involving congressional redistricting in Louisiana, the Court granted the state’s application to stay a district court’s order that blocked the state’s congressional map for likely violating the VRA. As a result of the Court’s unsigned order issued via its shadow docket, Louisianans voted under the state’s previously blocked congressional map during the 2022 midterm elections. In the same order, the Court simultaneously granted the state’s cert petition that it filed alongside its initial stay request.

In another type of emergency application sometimes seen in voting cases, a party might ask the Court to vacate — or void — an appeals court’s stay of a district court’s decision. In other words, the petitioners might ask the Court to effectively reinstate a district court’s decision while an appeal proceeds.

Finally, parties who lost below will sometimes seek an “injunction pending appeal” — an order affirmatively granting relief that the district court denied.

Emergency applications go through a distinct process.

When a party submits an emergency application to the Court, the application is referred to a specific justice based on which federal appeals circuit the application arose from. Within the U.S., there are 13 federal circuits and each justice oversees a particular circuit or set of circuits.

After applications and related briefing are filed in civil cases, the circuit justice to whom the application is submitted may act on the application alone or refer it to the full Court. Justices almost always refer any potentially controversial applications to the full Court, often with a recommendation for how the Court should rule. While considering a stay application, a circuit justice can also issue what is known as an administrative stay to maintain the status quo pending a decision on the application.

If the full Court considers the application, the votes of five justices are required to grant an emergency request such as an application to stay or vacate. If the circuit justice acts alone to deny an application, the petitioner may file a renewed application to any other specific justice, but these renewed applications are usually referred to the full Court.