Jacquelyn Martin/AP Photo
The Supreme Court in Washington is seen here on June 27, 2023. The Court this term has handed down important victories for voting rights.
After a decade of gutting protections for voting rights and handing down decisions that strongly favored Republicans, the Supreme Court this term has handed down important victories for voting rights. On Tuesday, the Court emphatically rejected the so-called “independent state legislature theory,” which would have prevented state courts from applying state constitutions to protect voting rights. This follows a decision from a few weeks ago, where the Court held that the Voting Rights Act of 1965 was violated by Alabama’s drawing election districts in a way that disadvantaged Black voters.
These rulings are surprising because the Roberts Court has had a terrible record with regard to voting. In 2013, in Shelby County v. Holder, the Supreme Court declared unconstitutional crucial provisions of the Voting Rights Act, which required state and local governments with a history of racial discrimination in voting to get preapproval for any significant changes in their election systems. In 2019, in Rucho v. Common Cause, the Court held that federal courts can never hear challenges to partisan gerrymandering. In 2021, in Brnovich v. Democratic National Committee, the Court interpreted the Voting Rights Act to make it much more difficult to prove that state and local election practices, such as restrictions on absentee ballots, are racially discriminatory.
These cases provided reason for pessimism when the Court took two important voting cases this term. The stakes in Moore v. Harper, decided on Tuesday, were enormous. The case arose in North Carolina and involved whether state courts can enforce state constitutional requirements with regard to elections.
After the 2020 census, North Carolina, like all states, redrew election districts. There are now 14 congressional seats from North Carolina. The legislature drew the districts so that Republicans are likely to win 10 or 11 of the races, despite a close to 50/50 split between Democrats and Republicans in the state. The North Carolina Supreme Court found that this violated the North Carolina constitution and appointed a commission to redraw the districts. The nonpartisan districts were used in November 2022, and Republicans won seven seats and Democrats won seven seats, which is to be expected in an election where the parties statewide received almost the same number of votes.
The legislature and its supporters went to the U.S. Supreme Court and contended that the North Carolina Supreme Court had no legal authority to be involved, because the state legislature gets the last, unreviewable word. They base this argument on a provision of Article I, Section 4 of the Constitution which says that the legislature of each state shall determine the time, place, and manner for choosing its members in Congress. This is called the “independent state legislature theory.” It was first suggested by former Chief Justice William Rehnquist, in an opinion in Bush v. Gore in 2000, and if endorsed by the Supreme Court, would make state courts powerless to enforce their state’s laws.
The Court on Tuesday in Moore v. Harper emphatically rejected the independent state legislature theory.
The implications of the independent state legislature theory are truly frightening. It would mean that no court, state or federal, could hear challenges to partisan gerrymandering for congressional seats, no matter how egregious. It would mean that independent districting commissions, such as exist in California and several other states, would be unconstitutional for House of Representative elections. Even more scary, it likely would mean that state legislatures could ignore the popular vote in allocating electors and state courts would be powerless to enforce state laws requiring that the winner of the popular vote get the states’ electors in the Electoral College.
The Court on Tuesday in Moore v. Harper emphatically rejected the independent state legislature theory. Chief Justice Roberts wrote for the Court in a 6-3 decision, and held that state courts have the power to enforce state law, including with regard to elections. He invoked Marbury v. Madison, the 1803 decision that famously recognized the power of courts to review the constitutionality of executive and legislative actions. The Court declared: “We are asked to decide whether the Elections Clause carves out an exception to this basic principle. We hold that it does not. The Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review.”
The decision is thus an important victory for the power of state courts to ensure free and fair elections. And it comes just a few weeks after the decision on June 8 in Allen v. Milligan, which found that Alabama violated the Voting Rights Act in its drawing of congressional districts.
Alabama’s population is about 27 percent Black individuals. Alabama has seven seats in the House of Representatives. In redistricting after the 2020 census, the Alabama legislature packed Black voters in one of the seven districts and spread them around the others, with the effect that Alabama was very likely to have only one Black representative in Congress.
Many, including me, feared the Court would further weaken the Voting Rights Act.
But Chief Justice Roberts wrote for the Court here, too, and following decades-old precedents, he found that Alabama’s legislature violated the Voting Rights Act. On Monday of this week, the Court applied this ruling to find that Louisiana, too, had violated federal law. In each instance, it raises the likelihood that an additional Black representative, and an additional Democrat, will be elected to Congress. With a thin margin separating Democrats and Republicans in the House, that could have real political implications, beyond just safeguarding the voting power of minorities under the Voting Rights Act.
Of course, these decisions must be put in context. The Roberts Court overall is quite conservative, as we are likely to see this week when the Court ends affirmative action by colleges and universities. And neither of these recent decisions does more to protect voting rights. But they could have made the law so much worse, and they didn’t. That, with this Court, is cause for celebration.
