The unexpected death of Supreme Court Justice Antonin Scalia was a political earthquake that will dramatically shake up our nation’s highest court. President Obama will now have an opportunity to appoint a liberal-leaning justice, but even if Republicans refuse to confirm a replacement, as they’ve threatened, the conservative bloc has nevertheless lost its five-to-four majority.
Going forward, if the court deadlocks at four votes apiece in future cases, such ties would either affirm the lower court rulings under review without setting precedent, or be scheduled for reargument for after a new justice can be seated. What you might not realize, for all the Republican bluster, is that this stalemate favors Democrats, thanks to the decisive advantage Obama has racked up after seven years of appointments to other federal courts nationwide.
As a result, Scalia’s passing will prevent the Supreme Court’s conservatives from overturning lower court decisions they don’t like in many high-profile cases on the docket this year. That includes a number of key cases in the crucial areas of redistricting and voting rights.
Perhaps the most consequential election case that has now apparently been rendered moot is Evenwel v. Abbott, where a conservative victory would have radically shifted legislative power toward Republicans nationwide. The Evenwel plaintiffs want to require state lawmakers to only count eligible voters rather than all residents when crafting election districts, which would reduce the political strength of areas with large concentrations of non-citizens, children, and prisoners.
Doing so would undermine urban Democrats and bolster rural Republicans—and do away with the very concept of “one person, one vote.” But while there was no guarantee that all five conservatives would have sided with the plaintiffs, all four liberals were opposed, and now the lower court’s ruling against the plaintiffs will almost certainly survive without Scalia.
More immediately, the court was set to decide two cases, one in North Carolina and one in Virginia, where district courts have partially struck down Republican-drawn congressional maps on the grounds that map-makers improperly relied on race when drawing the lines. Republicans had appealed the Virginia ruling, and the Supreme Court was set to hear oral arguments on March 31, but without a Republican majority, the lower court ruling is very unlikely to be disturbed. That means Democrats will be all but guaranteed to pick up a seat, as black voters will likely gain another representative under the remedial map approved by the district court.
Meanwhile, North Carolina’s congressional map was struck down on similar grounds, and the district court in that case ordered Republican lawmakers to implement new lines by Feb. 19. Legislators had appealed to the Supreme Court to issue a stay pending appeal, but the Supremes had previously rejected a similar stay application in Virginia, even with Scalia on the bench. North Carolina Republicans aren’t apt to fare much better. That means the state will have to come up with a new congressional map this week, which the legislature is already preparing to do, though Democrats and African-American voters might not ultimately benefit (as they will in Virginia).
One further redistricting case that could potentially have an even greater impact if the plaintiff succeeds is Shapiro v. McManus. There, a Republican voter is suing over Maryland’s maps—which are rare examples of partisan gerrymanders drawn to benefit Democrats rather than Republicans—on the grounds that they violate his First Amendment rights to freedom of speech and association. Such arguments have failed to gain traction in the past but might receive new injection of life now.
In 2004’s Vieth v. Jubelirer, the court held that gerrymandering for strictly partisan purposes could potentially be unconstitutional, but Justice Anthony Kennedy refused to overturn any such gerrymanders at the time on the grounds that he lacked a consistent standard he could use to evaluate such claims. Shapiro’s First Amendment challenge might now provide such a standard.
In Vieth, the Supreme Court’s four liberals expressed their broad openness to striking down overtly partisan maps, so a lower-court ruling favorable to the plaintiffs in Shapiro could survive on appeal to the Supreme Court in the event of a four-four tie. And if Obama can successfully appoint another liberal to the high court, we might finally see the courts strike down gerrymanders across the nation. That could radically upend congressional maps nationwide but would ultimately benefit Democrats, because Republicans have drawn a majority of the lines.
Redistricting is by no means the only election issue that Scalia’s death has upended. Several key voting rights lawsuits over Republican voter suppression tactics are currently underway. One prominent effort involves an attempt to block North Carolina's voter ID law, which disproportionately harms black voters. If laws like this one are found unconstitutional at the district court level, it is unlikely that many such rulings would be overturned on appeal: Democrats hold a majority of seats on appeals courts covering two-thirds of the nation’s population, and conservatives on a tied Supreme Court wouldn’t be able to do anything about it.
This is just a small sampling of cases; many others, on huge topics such as reproductive rights, climate change, and immigration, will also be affected. But there’s one thing we know won’t happen: If heaven forbid there’s another disputed presidential election like we saw in 2000, at least we won’t have the outcome decided by another Bush v. Gore.