For 57 years, the Voting Rights Act served as a remarkably effective bulwark against state-level attempts to restrict the right to vote, especially for black and minority voters. But voting rights are under attack in state legislatures across the country, and the Supreme Court appears content to allow those attacks to continue without legal challenge.
This backsliding in the defense of suffrage began in 2013 with the Supreme Court’s 5-4 decision in Shelby County vs. Holder. Chief Justice John Roberts wrote the majority decision that effectively struck down Section 5 of the Voting Rights Act. Previously, Section 5 required state and local governments to obtain “prior authorization” from the federal government to ensure that proposed changes to voting laws did not negatively impact minorities. Section 4 of the Voting Rights Act applied a formula established by Congress to determine which government entities were subject to the “pre-authorization” requirement of Section 5. Chief Justice Roberts, joined by Justices Scalia, Kennedy, Thomas, and Alito, found Section 4 to be unconstitutional because it was based on 40-year-old data. So, in effect, there is currently no way to enforce Section 5 of the Suffrage Act because Section 4 has been declared unconstitutional.
More recently, in February 2022, the Supreme Court issued a stay and granted certiorari in Merrill v. Milliganagain undermining the Voting Rights Act.
In Merrill v. Milligan, the Supreme Court, by a 5-4 vote on its “Shadow Docket”, effectively reversed a lower court’s ruling that the new map of Alabama’s congressional district violated voting rights law by not giving an adequate voice to black voters in the state. More than 25% of Alabama’s population is black (a percentage that increased in the 2020 census), but black voters make up the majority of voters in only one of the state’s seven congressional districts according to the news. maps drawn by the state legislature. The district court found a violation of voting rights and redrew the congressional districts to add another majority black district. The Supreme Court disagreed.
The Supreme Court’s granting of a stay fell roughly in the political direction, with the Court’s conservative majority (Justices Thomas, Alito, Gorsuch, Kavanaugh and Barrett) voting to grant a stay of the court’s decision. district and instead authorizing the map as drawn by the state legislature to be used for the next election. Interestingly, Chief Justice Roberts joined the Court’s more liberal justices (Kagan, Sotomayor, Breyer) in opposing the stay and upholding the map drawn by the district court.
Technically, the Supreme Court simply issued a stay of the District Court’s decision until the Court could have a full briefing and oral arguments. But the real-world consequence is that Alabama’s disputed electoral maps will be used for the 2022 election — a huge defeat for those who sought to bolster black voters by having an additional black-majority district.
The Supreme Court has also shown hostility to redistricting and gerrymandering challenges. Although suffrage advocates won two key initial victories in North Carolina and Pennsylvania, the victories may be short-lived. In early March, the Supreme Court rejected emergency requests from Republicans to block the use of court-drawn districts in these battleground states. Court-drawn maps replaced maps drawn by Republican-controlled legislatures in those states, which state (not federal) courts deemed unfairly partisan.
In the North Carolina case, the state Supreme Court rejected the map drawn by lawmakers. A new map has been drawn by a court-appointed panel and is expected to provide a more balanced representation of one of the country’s most ‘purple’ states.
The Pennsylvania Supreme Court made a similar decision in Toth vs. Chapman. Governor Tom Wolf vetoed a new electoral map drawn by the Republican-controlled Legislature, leading the state Supreme Court to implement a map drawn by an independent third-party expert.
What is most troubling, however, is that it appears four of the justices are prepared to completely remove state courts from reviewing the actions of state legislatures in redistricting. In requesting the suspension of court-appointed cards, state legislatures asserted a position known as the “independent state legislature doctrine”. In short, this theory proposes that only state legislatures have the power under the US Constitution to oversee federal elections. The theory is based on Article I, Section 4, Clause 1, of the Constitution which reads: “The times, places and manner of holding elections for Senators and Representatives shall be prescribed in each state by the legislatures thereof; but Congress may at any time, by law, make or modify such regulations.” Based on this language, the doctrine of the Legislature of Independent States provides that the constitutions and courts State supremes cannot supersede the authority of a state legislature in matters of federal elections, so in short, state legislatures would have free rein to redistrict without any judicial oversight.
Four of the Supreme Court’s conservative justices (Thomas, Alito, Gorsuch and Kavanaugh) have previously indicated that they are receptive to the doctrine of the Independent State Legislature. Justice Kavanaugh sided with the majority in the North Carolina case, citing his reluctance to throw the 2022 election into chaos. But he left the door open to revisit the issue of the doctrine of the Independent State Legislature in the future.
Essentially, the Supreme Court is slowly dismantling the Voting Rights Act of 1965 and now also appears poised to remove state courts from scrutiny of the actions of state legislatures when drawing new district lines. . More is almost certain to come on these important issues.
Copyright © 2022 Womble Bond Dickinson (US) LLP All rights reserved.National Law Review, Volume XII, Number 70