It’s that time of year again: the age of Spotify Wrapped, best of the year listicles and a yearning to reflect on everything about 2022 while anticipating what 2023 has in store. Here at Democracy Docket, we took the time to look back on what happened in the U.S. Supreme Court this year in the sphere of voting rights, redistricting and democracy. 2022 was definitely a quiet — but still significant — year for voting rights that sets the Court up for major decisions in 2023.
The Court’s merits docket was quiet — but expect big decisions next year.
Unlike in 2021, when the Court handed down the major voting rights decision in Brnovich v. Democratic National Committee, the merits docket — meaning the lawsuits where the Court rendered a final decision on the substance of the legal dispute — was relatively quiet in 2022. The Court issued one decision in a fully briefed and argued case that touched on voting, but only tangentially. In North Carolina State Conference of the NAACP v. Circosta, the Court ruled that Republican lawmakers could intervene to defend a North Carolina photo ID law — a procedural question that didn’t touch on the underlying photo ID law itself. The Court’s decision merely sent the case back to the lower courts for more litigation.
The Court also issued a final decision in Migliori v. Lehigh County, though without holding full briefing or oral argument. Migliori was a case out of Pennsylvania over whether undated mail-in ballots needed to be counted in a 2021 judicial election. The 3rd U.S. Circuit Court Appeals ruled that these ballots needed to be counted. The Supreme Court, however, vacated (or voided) the ruling and sent the case back to the 3rd Circuit with instructions to dismiss it as moot (since the election was certified and there was no longer any controversy). While this means the 3rd Circuit’s ruling is no longer in effect, it doesn’t mean the lower court’s decision was wrong and a federal court could decide undated ballots must be counted in a future, separate case.
In a Texas redistricting lawsuit, the Court denied an appeal from one set of plaintiffs over a three-judge panel’s decision to allow the state Senate map to be in effect for the midterm elections (because 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.
The Court denied a few petitions for certiorari, the formal mechanism by which parties in a case ask the Court to review a lower court’s decision. If the Supreme Court denies a party’s petition, the lower court’s ruling stands as a final judgment in the case. The Court denied certiorari petitions in:
- Carter v. Chapman, an impasse lawsuit in Pennsylvania that led to the Pennsylvania Supreme Court adopting a new congressional map;
- Benninghoff v. 2021 Legislative Reapportionment Commission, a Republican lawsuit challenging Pennsylvania’s new state House and Senate districts and
- Ada County v. Idaho Commission for Reapportionment, a lawsuit from Idaho’s most populous county against the state’s new state House and Senate districts.
In 2022, the U.S. Supreme Court did hold oral argument in two landmark cases: Merrill v. Milligan, a case out of Alabama about Section 2 of the Voting Rights Act (VRA), and Moore v. Harper, a case out of North Carolina that gives the Court the opportunity to review the fringe independent state legislature theory. However, we almost certainly won’t get the final decisions in those cases until next year, and likely not until next summer. So while the merits docket was quiet in 2022, keep an eye out for major developments in 2023.
The shadow docket was busier — and had some consequential outcomes.
In contrast to the merits docket, the Court’s shadow docket — which handles the emergency requests to the Court that are decided without full briefing or argument and result in orders that are frequently unsigned and unexplained — had some decisions with significant consequences.
While Merrill v. Milligan was fully argued on the merits docket this year, it first reached the Court through the shadow docket. Through a February order, the Court blocked a lower court decision that found that the VRA required Alabama to draw a second majority-Black congressional district. This move influenced a Georgia judge’s decision to let Georgia’s newly redrawn maps remain in effect despite also finding the maps likely violated the VRA. The Court then paused a similar decision requiring another majority-Black congressional district in Louisiana pending the outcome of Merrill. Combined, these two shadow docket decisions — without full briefing, argument or reasoning — had a substantial impact on redistricting and possibly contributed to Republicans winning the U.S. House of Representatives in this year’s elections.
Finally, the Court blocked Wisconsin’s new state legislative maps from going into effect. In the impasse suit Johnson v. Wisconsin Elections Commission, the Wisconsin Supreme Court adopted the state House and Senate maps proposed by Gov. Tony Evers (D). The Republican-controlled Wisconsin Legislature asked the U.S. Supreme Court to block these maps, a decision the Court granted in an unsigned order in March. The Court reasoned that the maps represented unconstitutional racial gerrymanders and sent the case back to the Wisconsin Supreme Court, which responded by adopting the Wisconsin Legislature’s proposed districts. At the same time, the U.S. Supreme Court denied a request from Republican congressmen to block the state’s congressional map from going into effect. Notably, the Court’s decision to order Wisconsin to draw new state House and Senate maps came after two justices explained the decision to stop Alabama from having to draw a new map by arguing it was too late to draw new maps.
The Court denied several other emergency requests:
- In Moore v. Harper, the Court denied a Republican request to block North Carolina’s court-drawn congressional map from going into effect (the Court later agreed to hear the case through its merits docket).
- In Migliori v. Lehigh County, the Court denied a request to block the 3rd Circuit’s decision to count undated mail-in ballots (the Court later vacated the 3rd Circuit’s ruling through its merits docket).
- In Toth Jr. v. Chapman, the Court denied a Republican request to block Pennsylvania’s court-drawn congressional map from going into effect.
- The Court denied a request related to redistricting litigation in Texas where Republican legislators asked to pause the case while they fight subpoenas for depositions and documents.
There are several certiorari petitions pending Court action.
There are pending certiorari petitions for several voting and redistricting cases. The vast majority will be denied, as the Court only accepts about 60 each term:
- Harness v. Watson, a case challenging a provision of the Mississippi Constitution that disenfranchises individuals with past felony convictions;
- Richardson v. Flores, a case challenging Texas’ signature verification process for mail-in ballots;
- Rivera v. Schwab, a case challenging Kansas’ congressional map and
- League of Women Voters of Ohio v. LaRose, a case challenging Ohio’s congressional map where Ohio Republicans want the Court to overturn an Ohio Supreme Court decision invalidating the map.
Although the year was quiet, the U.S. Supreme Court took several steps that seem to support Republicans.
Ultimately, 2022 was a quiet year for voting rights in the nation’s highest court. The Court did not hand down any major decisions poised to reshape voting law for years to come (although it almost certainly will next year). That said, the Court did make a splash in redistricting through the shadow docket, halting decisions in Alabama and Louisiana that would have benefited Black voters and Democrats while letting the hyper-gerrymandered Wisconsin Legislature get its preferred new districts. With the reasoning in the Alabama and Wisconsin decisions seemingly in diametric opposition to each other, it’s hard not to think the Court is quietly putting its thumb on the scale in favor of Republicans.