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. It is expected to legalize election theft and eviscerate voting rights of people of color.
Tomorrow, oral arguments will be heard in court Merrill v. MilliganIn this case, the court could well deny communities of color the right to use The Voting Rights Act to reverse racially discriminatory electoral mappings.
Und in Moore v. HarperThe case has not yet been scheduled for argument. The court could remove the right of state judges to stop GOP-led legislatures attempting to subvert election outcomes like Trump supporters did in 2019.
Trump and his associates tried hard to manipulate voting rules in order to steal the election. 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.
The Supreme Court Could Continue to Destroy the Voting Rights Act
The Supreme Court has a third chance to destroy the Voting Rights Act in the Merrill case where Alabama’s congressional maps diluted the power of Black voters. First, the 2013 case of Shelby County v. HolderThe court struck down Section 5 of the Voting Rights Act. This section required federal preclearance for changes to election rules in jurisdictions that have a history of discriminatory voting. John Roberts, the majority opinion author, stated that Section 2 would still be available to protect voter rights. This assurance will likely prove hollow.
Second, in the 2021 Case of Brnovich v. Democratic National CommitteeThe court was then weakened Section 2 of the Voting Rights Act, which requires that state electoral systems give minority voters an equal opportunity “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 to vote.
In the Merrill The court appears to be ready to remove Section 2 in the context 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. An Alabama 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 creation of a second district by the state with a Black plurality or majority.
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.”
Five Supreme Court justices of right-leaning parties halted the progress of the Supreme Court in February. Alabama district court decisionWhile the high court reviews the case. This means that the discriminatory map will be used in the 2022 midterm elections.
Roberts dissented from the stay of the Alabama 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 serves an important function in ensuring equal public resources for minorities. “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 is 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]This is the most disruptive case in decades for minority representation, more so than any other. Shelby County,” said Harvard Law School professor Nicholas StephanopoulosThe amicus brief was filed by, who advocated the creation of a second majority Black district.
The Supreme Court Could Eliminate State Courts Oversight of Elections
In MooreNorth Carolina Republicans are seeking to restore the redistricting map that was drawn by the GOP-controlled legislature. North Carolina is evenly divided between Republicans and Democrats. 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 stopped the state’s use of the map during the 2022 midterm elections, and ordered that it be redrawn to include all North Carolina residents.
In March, the U.S. Supreme Court allowed the state supreme court’s ruling to stand for the fall 2022 elections. Thomas, Alito, Neil Gorsuch and others dissented. They expressed doubts about the role of state courts in setting rules for federal election 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 as “repugnant to the sovereignty of states, the authority of state constitutions, and the independence of state courts, and would produce absurd and dangerous consequences,” the state supreme court wrote.
Use the formula set forth by the U.S. Supreme Court 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. It is well-established by scholars from all ideologies. 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 the U.S. Constitution “does not displace state constitutional rules” regulating elections.
The independent state legislature theory was rejected by 5-4 of the U.S. Supreme Court. 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 all dissented. Roberts however preferred a more limited version independent state legislature theory.
2019 was the year that the court held Rucho Federal courts are not able to review partisan-gerrymandering. Roberts, however, wrote that the majority of state courts could still apply state statutes and constitutions to limit partisan gerrymandering.
At least 17 statesNew laws have been passed that prohibit voters from voting. American Progress by Michael Sozan warnsThis theory could have serious consequences. If the court adopts the independent State Legislature theory, state courts would no longer be able address voter suppression. Partisan legislators would not be allowed to gerrymander; state elections rules would not apply to gerrymandering. The discretionary authority of local and federal election officials, as well as secretaries of state, would be nullified. Governors would lose their right to veto anti-democratic legislation 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. Both houses of the legislatures are now controlled by Republicans 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. HarperThis could be the cause of the conflagration.
In her Brnovich Kagan passionately defended and opposed the Voting Right Act to any dissent:
Rarely has a statute required such sacrifices to ensure its passage. Never has a statute done more to advance the Nation’s highest ideals. In this moment, few laws are more crucial. This Court has never treated any statute worse in the past decade.
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.
