When the U.S. Supreme Court reconvenes next week, it’s going to pick up where it left off last term on the extremist majority’s path of destruction. Abortion, gun proliferation, civil rights, criminal rights, separation of church and state, climate change—everything that made life in America more fraught for everyone who isn’t a white conservative man. They’re not even close to done.
That’s because there are still the scraps of democracy—we still have elections, despite their concerted efforts of the last few decades. In most places, those elections are free and fair, and the outcomes accepted. But that could all change with two of the cases the Court is taking up this fall. One would allow an egregious racial gerrymander, picking apart the last bits of the Voting Rights Act (VRA) that are still standing, and one could put radical Republican state legislatures in charge of picking our next president.
Last February, the Court’s extremists used the shadow docket to stay a lower court’s order to make Alabama’s Republican legislature redraw its congressional district map. The lower court ruled that the redistricting plan diluted the votes of Black Alabamans—about a quarter of the state’s population—in violation of Section 2 of the VRA. The legislature had basically put the majority of Black people in one of the state’s districts, diluting the Black vote in violation of Section 2, which prohibits any voting procedure that “results in a denial or abridgment of the right of any citizen of the United States to vote on account of race.” That happens, the provision goes on, when, “based on the totality of circumstances,” racial minorities “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” The court ordered the state to draw a second Black district.
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The Supreme Court said, “nope.” Making this ruling from the shadow docket—with no arguments, no public debate, no accountability for judicial reasoning was so egregious that Chief Justice John Roberts, who has made gutting the VRA his life’s work, did not join the opinion.
Alabamans are voting this November based on that map, and the Court will dispense with the challenge to the map this session. With that, another chuck of the VRA’s protections will be gone. “This isn’t just about Black Alabamians. It’s about Black Americans, especially Black Americans in the South,” said Shalela Dowdy, president of Stand Up Mobile and one of the parties in the case. “But it’s about Black Americans and whether or not your vote and your voice will be influential, impactful and heard.”
If the Court accepts the argument from the state of Alabama—that “Just because a majority-minority district could be drawn does not mean that it must be drawn”—it would “turn the Voting Rights Act on its head,” election law expert Rick Hasen at the UCLA School of Law told Politico. “It is emphatically a race-conscious statute. And it would be, through statutory interpretation, a way of sapping the life out of such a provision.”
The second case that could change everything about our election, and not for the better, is Moore v. Harper, the case from North Carolina that argues the state legislature has primacy over the state Supreme Court—that all state legislatures have primary over every state court—in determining how federal elections are run and how the votes are counted.
“In truth, it’s really not even a gerrymandering case or a voting rights case,” said Allison Riggs, the co-executive director of the Southern Coalition for Social Justice. “It’s about checks and balances and federalism.” In this case, the legislature is appealing to the Court to reverse the North Carolina Supreme Court over the legislature’s redistricting plan. It goes beyond the gerrymander, however, to every aspect of voting and elections in the state. If the legislature prevails and the Supreme Court upholds the crackpot “independent state legislature” theory of legislative primacy, Republicans could throw all of the congressional redistricting maps that were decided by state courts or even independent redistricting commissions into question.
That’s one of the things the Republicans are planning for, Adam Kincaid, the executive director of the National Republican Redistricting Trust, told Politico. “Everyone’s going to be waiting to see where the Court goes, and then they’ll have to reevaluate the maps that they enacted—legislative and congressional—to see if they’re in compliance.”
The other thing the independent state legislature theory could throw into question is how the electors in a presidential election are selected. Trump lawyer John Eastman tried to use the theory to argue for the appointment of fake electors by legislators.
Riggs is hopeful that the fact that the theory has been so thoroughly debunked in briefs submitted to the Court (for example, the one from the Conference of Chief Justices from state supreme courts) will convince them just how ridiculous they could look by endorsing it. At least one of the justices—Samuel Alito—is unlikely to give a damn.
“Legally speaking, this really is I think one of the cases where the briefing and the arguments—up to the point where the court decided to take the case—weren’t really fully fleshed out, and it wouldn’t surprise me if this is one they end up regretting taking,” she said. Let’s all hope so. Four of the extremist—Alito, Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh—have already signaled support for the theory. Roberts is highly likely to be a no because he doesn’t want to look like a total partisan hack. Amy Coney Barrett is an unknown.
“You cannot look at these cases objectively, without acknowledging the fact that taken together, they could determine whether or not the United States remains as the democracy that we have come to love,” former Attorney General Eric Holder, now director of the National Democratic Redistricting Committee, said. “I think, unfortunately, we take for granted a democracy that fulfills the promise of one person, one vote.”
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