Last Term, the U.S. Supreme Court Didn’t Blow Up Democracy

By Mac Brower

The steps leading up to the U.S. Supreme Court on a dark blue background surrounded by the names of cases from this term, with good outcomes colored blue and bad outcomes colored red.

The U.S. Supreme Court’s 2022-23 term ended on June 30, with the release of the final opinions and the last order list. The term proved to be an important one for democracy, with two landmark voting rights cases and a slew of smaller decisions influencing our elections.

In two significant decisions, the Court upheld part of the Voting Rights Act and rejected a dangerous theory.

Among the most significant news out of the Court this term were two major voting rights decisions. The two cases, Allen v. Milligan and Moore v. Harper, both represented serious threats to American democracy by threatening to diminish the influence of minority voters and granting unchecked power to state legislatures.

Allen, argued in October 2022, gave the Court the opportunity to further weaken the Voting Rights Act of 1965 (VRA). The case centered around redistricting in Alabama and dealt with Section 2, which prohibits any voting law, practice or map that results in the “denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” 

Republicans asked the Court to overturn a lower court decision finding that the state’s congressional map violated Section 2 by allowing Black voters to choose the representative of their choice in only one congressional district despite making up 27% of the state’s population. In doing so, Alabama Republicans invited the Court to significantly overhaul Section 2, possibly rendering it toothless to protect voters.

But in a win for voters, the Court declined to overturn the lower court’s decision, affirming decades of precedent and leaving Section 2 intact. As a result, Alabama will be required to draw a less discriminatory congressional map. 

The Court’s June 8 decision, however, will reverberate beyond the state’s borders. At least nine other states have ongoing Section 2 litigation that will continue unimpeded by the Court’s decision. Most immediately, the Court reinstated an order blocking Louisiana’s congressional map, paving the way for a redraw in that state as well and allowing litigation to continue before the 5th U.S. Circuit Court of Appeals.

While the decision in Allen is a significant victory, the Court did allow likely illegal congressional maps to be used in both Alabama and Louisiana during last year’s midterms. The Court couldn’t bring itself to upend Section 2 entirely, but it was more than happy to let Republicans claim an unfair advantage in the interim.

In Moore, argued in December, the Court considered the fringe independent state legislature (ISL) theory. North Carolina Republicans used the theory — which posits that state legislatures have special authority to set the rules for federal elections unchecked — to argue that the North Carolina Supreme Court had overstepped its authority when it struck down the Legislature’s congressional map for being a partisan gerrymandering. Had the U.S. Supreme Court agreed, state constitutional protections for voting, independent redistricting commissions or even a governor’s veto of election laws could have been jeopardized.

On June 27, in another win for voters, the Court rejected the ISL theory in a 6-3 ruling, finding that the theory is unsupported and that the U.S. Constitution “does not exempt state legislatures from the ordinary constraints imposed by state law.” While the decision won’t have much of an impact in North Carolina due to an intervening state court ruling, it preserves the ability of state courts across the country to protect voters from restrictive election laws and gerrymandered congressional maps. In light of Moore, the Court also vacated (or voided) a decision in a redistricting case out of Ohio that raised similar arguments and sent it back to state court for reconsideration.

Although Moore and Allen were the biggest voting rights cases the Court decided on its merits docket, the Court took a few other important actions in voting rights cases this past term. In Migliori v. Lehigh County, the Court vacated a ruling requiring undated mail-in ballots be counted in a 2021 judicial election in Pennsylvania. The Court sent the ruling back to the 3rd U.S. Circuit Court of Appeals with instructions to dismiss it as moot. While this means the lower court ruling is no longer in effect, it doesn’t mean the lower court’s decision was wrong and a federal court could still decide that undated ballots must be counted in a future, separate case.

The Court also rejected appeals in two federal redistricting cases. In Texas, the Court denied an appeal from one set of plaintiffs over a three-judge panel’s decision to keep the state Senate map in place for the 2022 midterm elections. (Since the decision was from a three-judge panel, the appeal went directly to the Supreme Court. In the meantime, litigation over these plaintiffs’ claims, and the broader redistricting case, is ongoing in the district court. In Mississippi, the Court similarly denied a direct appeal in a case over the state’s  congressional map. Plaintiffs had asked the Court to review a decision voiding a decade-old order that required Mississippi to create a congressional plan precleared under the VRA, meaning the state had to get federal approval before enacting the map. The Court dismissed the appeal for lacking jurisdiction, leaving the state’s 2020 congressional map in place without ruling on its constitutionality.

The Court declined to hear several cases, ranging from felony disenfranchisement to redistricting.

Meanwhile, throughout the course of the term, the Court received and considered petitions for writs of certiorari in several election-related cases. These petitions are the formal mechanism by which parties in a case ask the Court to review a lower court’s decision, and the Court is free to accept or deny these petitions as it sees fit.

The Court denied petitions in:

The Court’s rejection of these petitions means that the lower court’s ruling stands as the final decision in the case. Unlike the merits decisions, the denials are a mixed bag this term. In particular, the decision to leave Mississippi’s felony disenfranchisement scheme intact drew a dissent from Justice Ketanji Brown Jackson, who wrote that “the Court has missed yet another opportunity to learn from its mistakes. While Moore and Allen were both important for democracy, the Court still has many shortcomings when it comes to voting rights litigation.

Look out for a redistricting case next year.

As we look ahead to next year’s term, there’s already a redistricting case on the Court’s merits docket. In January, a three-judge panel struck down South Carolina’s congressional map for being a racial gerrymander in violation of the 14th Amendment. South Carolina lawmakers appealed the decision, which the Court has to consider since it’s an appeal from a three-judge panel. In May, the Court indicated it would hear the case in full next term, which includes accepting written briefing and hearing oral argument.  The argument has not yet been scheduled.

There’s still plenty of time for more election cases to make it to the Court’s docket, too. We’ll be keeping an eye out for any cases that the Court decides to hear. Rulings in election-related cases next term will help determine if this year’s pro-democracy victories are a trend — or merely an aberration.

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