While conservatives on the Supreme Court prepare to hear cases on affirmative action and gay rights this fall, the court will also hear two gerrymandering-related cases, which could give Republicans in particular much more power in determining how people vote, or even whose vote counts, in the 2024 presidential election.
When Alabama Republicans redrew congressional districts this year based on new census data, they packed Black voters into mostly one of seven congressional districts, despite the fact that the state is about a quarter Black. Civil rights advocates filed a lawsuit, claiming that Republicans violated the Voting Rights Act of the civil rights era by failing to provide Black voters with fair representation in a second majority-minority district. In Alabama, a lower court agreed. And now the Supreme Court is going to hear the case.
As the court begins a new term, this is one of the first cases to be heard; arguments begin on Tuesday. The justices have already decided to keep the dubious Alabama map in place for the midterm elections. The court is now likely to ask whether Alabama, or any state, needs to consider race at all when drawing congressional districts. Alabama claims it does not because drawing congressional districts should be unbiased by race. However, challengers argue that the Voting Rights Act was intended to ensure that a state with a history of discrimination, such as Alabama, considers race when attempting to draw fair lines.
Conservatives on the Supreme Court have long been skeptical of racial policies. They’ve been carving away at the Voting Rights Act for years, and this is another chance for them to do it.
It may make it easier for politicians to cram minorities into electoral districts, thereby diluting their votes. It may make it more difficult for states to support independent redistricting commissions in order to draw districts that are less partisan and racially divisive. It may also result in fewer minority-elected members of Congress and state legislatures.
Activists, particularly Democrats, say all of this makes it more difficult to communicate and organize politically in communities of color.
It all starts with another question about potentially illegal gerrymandering, this time in North Carolina, and whether Republican state legislators violated the state’s Constitution by drawing overtly political maps. In this case, the justices are debating how much power courts should have over state legislatures.
Consider the once-marginal conservative theory that only state legislatures — and no other structure of state power — have the ability to determine how elections are run. The “independent state legislature doctrine” refers to this. It’s a contentious, overly literal interpretation of the Constitution, which states that “the Times, Places, and Manner of Holding Elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof.”
That has traditionally been interpreted to mean state legislatures, as well as governors, state constitutions, and state courts; basically, that all levels of state government have a say in how elections are conducted.
Republicans in North Carolina, on the other hand, argued that the Supreme Court should allow them and only them to draw maps because the Constitution expressly states that the “legislature” has this authority. The Supreme Court is probably going to hear this case sometime next year.
If a majority of the court agrees with North Carolina Republicans, they could give politicians unilateral authority over how elections are run, from redistricting to voting rules and even how electoral votes are allocated. At its most extreme, election law expert Richard Hasen writes, it could allow state legislatures to subvert voters’ will and overturn election results. And, because the legislature would have complete control, recourse to the courts or the state constitution would be more difficult.
Conservative justices became interested in this theory around the time state politicians were under intense pressure from Trump and his supporters to undermine or even reject popular votes in states they lost. In 2020, they were largely rejected.
But what happens if the same pressure is applied in a future election, and politicians no longer feel constrained by courts or even their state constitution? The Supreme Court may open that door with this case.