In its upcoming term beginning this fall, the U.S. Supreme Court will decide two crucial voting rights cases that have the potential to upend our country’s current election landscape. The two lawsuits — one out of Alabama and the other out of North Carolina — raise entirely different questions, but both could drastically limit the ability to attack suppressive voting laws, overturn discriminatory maps and advocate for voters in court. How did these cases end up before the nation’s highest court and what’s at stake as the Court places fundamental rights in limbo yet again?
What happened in Alabama?
On Tuesday, Oct. 4, the Supreme Court will hear oral arguments in Merrill v. Milligan and Merrill v. Caster over whether Alabama’s congressional map violates Section 2 of the VRA by diluting the voting strength of Black voters. Back in January, a lower court blocked the map under Section 2 and ordered the state to draw a new congressional map with two majority-Black districts. Instead of complying with this ruling, the state accelerated the case to the Supreme Court via its shadow docket. In February, the Court delivered an unsigned, unexplained order pausing the lower court’s decision and reinstating the previously blocked congressional map with only one majority-Black district for the 2022 elections. The Court then added the case to its merits docket, placing Section 2 in the spotlight for the 2022 term, which begins in the fall.
What’s at stake in the Alabama case?
Alabama wants the Supreme Court to adopt a “race-neutral” approach to redistricting that would effectively eliminate the power behind Section 2, which currently prohibits any law that has the intent or effect of denying or abridging the right to vote “on account of race or color.” Since the VRA was enacted in 1965, Section 2 has been used in redistricting litigation to strike down maps that dilute the voting strength of minority voters by “packing” and “cracking” them across districts to prevent a particular minority group from electing its preferred candidates, even when the minority group represents a significant portion of the state’s voting population.
If Alabama Republicans get their way, however, map drawers and courts would be required to take a race-blind approach to redistricting, ignoring the fact that Section 2 was designed specifically to look at race-based factors to ensure that minority voters are not being harmed by laws or maps. Under the Republicans’ preferred solution, Section 2’s protections against minority vote dilution would be nullified.
This interpretation of Section 2 would cause very tangible harm to minority voters, particularly Black voters in southern states with sordid histories of racial discrimination. The ability to both create and protect majority-Black districts would be lost, allowing states “to knowingly submerge minority groups into districts in which they have no opportunity to elect their preferred candidates.” As the voters who filed Caster put,
[A]dopting a ‘race-neutral’ baseline would deprive minority groups of crucial protection in political systems where an enduring legacy of discrimination has left them in segregated communities with distinct political interests… ‘Race-neutral’ redistricting will invite states to turn a blind eye to those already marginalized groups and leave their members submerged within districts in which the politically hostile majority group consistently outvotes them. That is a recipe for white-dominated state governments and congressional delegations, Black disenfranchisement, and racial apartheid.
What happened in North Carolina?
Earlier this year, the North Carolina Supreme Court struck down the state’s congressional map for being a partisan gerrymander that violated the state constitution. A new map drawn by court-appointed special masters, which is much fairer than the original map, was adopted for the 2022 election cycle. However, Republican state legislators fought the adoption of this map in the U.S. Supreme Court, arguing that the Elections Clause of the U.S. Constitution only allows state legislatures, rather than state courts, to draw new congressional districts and that the state court system was exercising authority outside its limits in imposing a map for federal elections. The rationale invoked by Republicans is known as the independent state legislature (ISL) theory. The Court denied their emergency application in an unsigned order that offered no supporting explanation (which means that the court-drawn map will be in place, but only for the 2022 elections). However, the Court recently added the case, Moore v. Harper, to its full merits docket, meaning the ISL theory — which, up until now, has been labeled as a fringe constitutional theory — will have its day in the nation’s highest court.
What’s at stake in the North Carolina case?
At its core, the ISL theory is about how the U.S. Constitution should be interpreted when it comes to running federal elections. The theory focuses on two clauses in the Constitution that give state legislatures the power to set federal election rules (unless Congress issues its own rules). The current understanding is that “legislature” represents the state’s holistic lawmaking process, including state lawmakers, the governor’s veto and state court review. In contrast, the ISL theory interprets the word “legislature” in these clauses to mean legislature, and legislature alone.
If the ISL theory is validated, state lawmakers would have remarkable power to set federal election rules without oversight from state courts or state constitutions. While this may sound absurd and far-fetched, the mere fact that the Court accepted this case on its merits docket should ring alarm bells. In granting the North Carolina GOP’s petition to hear the case in full, at least four justices agreed that the ISL theory poses an important, unresolved issue that requires the attention of the Court.
If endorsed, state courts could lose the power to do their jobs — interpreting state law and enforcing their state constitutions — in the sphere of federal elections. State legislatures could set federal voting and election rules and draw congressional maps without that much-needed oversight. At its strongest, the ISL theory could also threaten gubernatorial veto power, citizen-led ballot measures and independent redistricting commissions.
What’s at stake for the country?
For decades, Republicans have been attacking voting rights from every possible angle, and now their fight made it to the nation’s highest court. With Section 2 of the VRA and the power of state courts hanging in the balance, the stakes for democracy are immense. Both cases out of Alabama and North Carolina threaten the ability of individuals, organizations and states to attack suppressive voting laws and expand access to the ballot box through fair maps and inclusive voting practices.
All of this legal discussion surrounding these landmark cases, however, should not distract from the fact that these decisions will affect voters, specifically minority voters, in very real ways. And, if these litigation tools are obliterated by the Supreme Court, there will be even fewer legal options available to fight back.