Marjorie Cohn warns that the rightward-veering Supreme Court may continue demolishing the Voting Rights Act.
Former President Donald Trump’s installation of three radical right-wingers on the Supreme Court is already yielding frightening victories for religious zealots and racists.
Last term, the court’s conservative majority revoked the constitutional right to abortion from half the population in the United States. This term, it is poised to eviscerate voting rights for people of color and legalize election theft.
On Oct. 4, the court heard oral arguments in Merrill v. Milligan, in which it may well deny communities of color the right to use the Voting Rights Act to overturn racially discriminatory electoral maps.
And in Moore v. Harper, which has not yet been scheduled for argument, the court may well strip the right of state courts to stop GOP-led legislatures from trying to subvert election results like some did in 2020.
Trump and his allies tried mightily to manipulate voting rules to steal the election from Joe Biden. It was Democratic governors and state courts that prevented Republican legislatures from illegally changing their states’ electoral tallies from Biden to Trump.
If the Supreme Court uses the Moore case to adopt the fringe “independent state legislature” theory, state courts, governors and election officials will no longer be able to provide that firewall.
Demolishing the Voting Rights Act
The Supreme Court has its third alarming opportunity to demolish the Voting Rights Act in the Merrill case where Alabama’s congressional maps diluted the power of Black voters.
First, in the 2013 case of Shelby County v. Holder, the court disemboweled Section 5 of the Voting Rights Act, which required federal pre-clearance of changes to election rules in jurisdictions with a history of discriminatory voting practices. In his majority opinion, John Roberts provided assurances that Section 2 of the Act would still be available to protect voting rights. But that assurance will likely prove a hollow promise.
Second, in the 2021 case of Brnovich v. Democratic National Committee, the court weakened Section 2 of the Voting Rights Act, which prohibits any voting practice that “results in a denial or abridgment of the right of any citizen of the United States to vote on account of race.”
That occurs when minority voters “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” The six right-wingers upheld two voting provisions that made it harder for people of color to vote.
In the Merrill case, the court appears ready to further gut Section 2, but in the context of redistricting. The evidence shows that 27 percent of Alabama’s residents are Black but only one of its seven congressional districts has a Black majority, reducing the probability of electing Black representatives.
A federal district court composed of three judges (including two Trump appointees) unanimously held that Alabama’s GOP-drawn congressional district map likely violates Section 2 of the Voting Rights Act. The court ordered the state to create a second district with a Black majority or plurality.
The district court cited Alabama’s “extensive history of repugnant racial and voting-related discrimination.” It also found “substantial and undeniable” evidence of socioeconomic disparities that “hinder Black Alabamians’ opportunity to participate in the political process.”
In February, five right-wing members of the Supreme Court put the brakes on the district court decision while the high court considers the case. That means the discriminatory map is being used in the 2022 midterm elections.
Roberts dissented from the stay of the district court’s ruling. Elena Kagan, joined by Sonia Sotomayor and Stephen Breyer, filed a 12-page dissent, which said the majority’s stay of the district court’s decision
“does a disservice to the District Court, which meticulously applied this Court’s longstanding voting-rights precedent. And most of all, it does a disservice to Black Alabamians who under that precedent have had their electoral power diminished — in violation of a law this Court once knew to buttress all of American democracy.”
Section 2 of the Voting Rights Act also serves an important function in guaranteeing equal public resources for minority communities.
“Indeed, research on the transformative power of the Voting Rights Act shows that in jurisdictions where minority voters have successfully challenged discriminatory electoral districts, gaps in economic opportunity have narrowed and that investment in basic infrastructure like roads and schools has improved,” according to the Brennan Center for Justice.
Erwin Chemerinsky, dean of UC Berkeley School of Law, warns that the conservative members of the Supreme Court could “even rule that considering the race of the people in the district in detecting discrimination is unconstitutional.” They might go even further and “rule that any law that prohibits racially discriminatory effects is unconstitutional.”
Amy Coney Barrett will probably vote to uphold Alabama’s discriminatory map. When asked at her confirmation hearing if she agreed with her mentor Antonin Scalia’s description of the Voting Rights Act as “a perpetuation of racial entitlement,” Barrett refused to answer.
“For those who care about Black or Latino representation … [Merrill] is the most disruptive case to minority representation in several decades, more so than Shelby County,” said Harvard Law School professor Nicholas Stephanopoulos, who filed an amicus brief advocating the creation of a second majority-Black district.
Eliminating Oversight of Elections by State Courts
In Moore, Republicans in North Carolina seek to restore a redistricting map drawn by the GOP-controlled legislature. North Carolina is fairly evenly divided between Republicans, Democrats and unaffiliated voters. The new map would probably have allowed Republicans to acquire two more seats in Congress, which would leave them with as many as 10 of the state’s 14 seats.
The North Carolina Supreme Court struck down the map, calling it an “egregious and intentional partisan gerrymander” that violated the state constitution. It blocked the state from using the map in the 2022 midterm elections and ordered it to be redrawn to represent all of the people in North Carolina.
In March, the U.S. Supreme Court allowed the state supreme court’s ruling to stand for the fall 2022 elections. Thomas, Alito and Neil Gorsuch dissented, expressing skepticism about whether state courts have any role in setting rules for federal elections. Although Brett Kavanaugh didn’t vote to block the state supreme court ruling, he said the court is ready to consider the independent state legislature theory.
The North Carolina Supreme Court rejected the independent state legislature theory — that only state legislatures have the authority to draw congressional maps with no review by state courts. The North Carolina court found the theory “repugnant to the sovereignty of states, the authority of state constitutions, and the independence of state courts,” saying it “would produce absurd and dangerous consequences.”
Using the formula established by the U.S. Supreme Court in Rucho v. Common Cause, the North Carolina Supreme Court said “state statutes and state constitutions can provide standards and guidance for state courts to apply” in gerrymandering litigation.
The U.S. Constitution’s election clause (Article I, Section 4) grants state legislatures the authority to set the “Times, Places and Manner of holding Elections for Senators and Representatives.” The electors clause (Article II, Section 1, Clause 2) gives each state legislature the power to determine the manner in which a state selects its presidential electors.
The independent state legislature theory limits “legislature” to the actual legislature. But it is well-established among scholars across the ideological divide that the term “legislature” is not limited to “the legislature.” It includes rulings of state courts frequently grounded in the state’s constitution, citizen ballot measures and governors’ signatures or vetoes.
In an amicus brief filed by the Conference of Chief Justices, a group of senior state judges rebuffed the independent state legislature theory, affirming that “while the text of the Elections Clause requires that state legislatures prescribe the laws governing federal elections, it does not otherwise displace the States’ established authority to determine the final content of their election laws, including through normal judicial review for constitutionality.”
A 5-4 majority of the U.S. Supreme Court rejected the independent state legislature theory in a 2015 case involving Arizona’s redistricting commission. It held that the term “legislature” should be broadly construed “in accordance with the State’s prescriptions for lawmaking, which may include the referendum and the Governor’s veto.”
Sotomayor and Kagan are the only two justices who voted with the majority and are still on the court. Roberts, Clarence Thomas and Samuel Alito dissented, although Roberts favored a more limited version of the independent state legislature theory.
In 2019, the court held in Rucho that partisan gerrymandering is not reviewable by the federal courts. But Roberts wrote for the majority that state courts could still apply state constitutions and statutes to restrict partisan gerrymandering.
At least 17 states have passed new laws erecting barriers to voting. Michael Sozan at American Progress warns of dangerous fallout if the court adopts the independent state legislature theory: state courts would then be unable to address voter suppression; partisan legislators would be unconstrained in gerrymandering; pro-voter election rules in state constitutions would be nullified; the discretionary authority of local and state election officials, including secretaries of state, would be limited; and governors would lose their power to veto anti-democratic laws or new congressional maps.
Trump lawyer John Eastman’s unconstitutional scheme that allows state legislatures to disregard voting results and appoint their own slates of electors could become a reality. Republicans now control both houses of the legislatures in 30 states.
If the court adopts the independent state legislature theory, it could result in “a situation where the majority of voters choose one presidential candidate and the state gives its electoral votes to a different candidate,” according to Boston University law professor Jack Beermann.
The independent state legislature theory “hangs out there, as a ticking time bomb, waiting to go off,” Rick Hasen, professor at UCLA School of Law and director of the Safeguarding Democracy Project, tweeted last year. Moore v. Harper could well be the case that ignites the conflagration.
In her Brnovich dissent, Kagan passionately defended the Voting Rights Act:
“Rarely has a statute required so much sacrifice to ensure its passage. Never has a statute done more to advance the Nation’s highest ideals. And few laws are more vital in the current moment. Yet in the last decade, this Court has treated no statute worse.”
As The New York Times editorial board wrote, “Over the past several years, the court has been transformed into a judicial arm of the Republican Party.” We can expect the Supreme Court to continue its radical — and frightening — shift to the right this term.
Marjorie Cohnis professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, and a member of the national advisory boards of Assange Defense and Veterans For Peace, and the bureau of the International Association of Democratic Lawyers. Her books include Drones and Targeted Killing: Legal, Moral and Geopolitical Issues. She is co-host of “Law and Disorder” radio.
This article is from Truthout and reprinted with permission.
The views expressed are solely those of the author and may or may not reflect those of Consortium News.