Divided We Fall: How Two Upcoming Supreme Court Cases Threaten to Derail Democracy
In just a few months, the Supreme Court will issue decisions on two pivotal cases that will determine the course of democracy in the United States. The challenges to voting rights presented in these cases threaten to diminish the voting power of large swaths of voters by potentially allowing for more gerrymandered congressional maps and giving states nearly unchecked regulatory power over elections, undermining an election system that should be impartial and democratic. This past midterm election, millions of Americans gathered once more to exercise their right to vote and express their views on issues such as the economy, abortion rights, and immigration. The ability to weigh in on these impactful issues is central to the tenets of American democracy, but that fundamental right may soon disappear. The upcoming Supreme Court cases of Merrill v Milligan and Moore v. Harper represent dangerous attempts to give unchecked autonomy to state legislatures, with far-reaching effects that could threaten the democratic foundations of the United States.
Gerrymandering, a technique used to draw electoral districts to favor a particular party, is often used to abridge the voting power of demographics likely to vote against the party in power. In 2020, the Alabama state legislature drew new district maps to accommodate population changes. Out of the 7 congressional districts in the state, only one (District 7) is majority African American. This gives approximately 14% representation (1 in 7) to a demographic that makes up 26.8% of Alabama’s population. The rest of the African American constituency, largely concentrated in Alabama’s “Black Belt,” is divided amongst multiple districts, with sharp divisions through major urban areas such as Montgomery and Birmingham.
The partisan gerrymandering of Alabama’s districts by a Republican-controlled legislature has led to several suits from plaintiffs on the basis of the Fourteenth Amendment’s Equal Protection Clause, which gives equal rights to citizens, and Section 2 of the Voting Rights Act (VRA), which prohibits states from diminishing the voting power of any citizen based on race. The district court ruled in favor of the plaintiffs and issued an injunction to redraw the maps, which was immediately appealed by Alabama. The Supreme Court stayed the injunction and agreed to hear the case to determine whether Alabama’s map violates the VRA.
If the Court rules in favor of upholding the current district map, the immediate ramification is a significant reduction in voting power for Alabama’s Black constituents. The greater implications, however, include further dismantling of the VRA and greater independence for state legislatures to blatantly gerrymander district maps. There is strong precedent that overturning district maps on the basis of race is constitutional, as long as it is not the predominating factor, seen in cases such as Shaw v. Reno and Bush v. Vera. If the Supreme Court rules in favor of Alabama, it would reverse this precedent, allowing for state legislatures to have unchecked autonomy over redistricting.
The current bench has already exhibited a willingness to strike down lower court intervention in gerrymandering cases. In 2019, the Court ruled in Rucho v. Common Cause that partisan gerrymandering cases were “nonjusticiable” by the court as they present questions of a political, not judicial, nature. The dissenting opinion in that case noted that gerrymandering cases involved “the most fundamental of . . . constitutional rights: the rights to participate equally in the political process, to join with others to advance political beliefs, and to choose their political representatives.” As the dissent suggests, the Rucho case, and now potentially Merrill v. Milligan, will detach the Equal Protection Clause and the VRA from the electoral process, and will diminish the voting power of not only communities of color, but of any demographic opposed to the majority party in each state legislature. The continued weakening of checks on state legislative power to determine the voting strength of individual parties or demographic groups creates a fundamental imbalance that destroys a fair democratic process.
Efforts to give state legislatures the power to further strengthen party hegemonies do not stop at egregious gerrymandering, but take further steps to skew the popular vote in favor of the ruling majority party. A radical interpretation of the Elections Clause of the Constitution is up for Supreme Court review, and if made precedent it will severely weaken the democratic foundation of U.S. elections. In the upcoming case Moore v. Harper, the Supreme Court will address whether state legislatures have sole unilateral authority to regulate federal elections, an ideology known as independent state legislature theory (ISLT). Proponents of ISLT argue that the Elections Clause (Art1.S4.C1), which in part stipulates that “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof…”, indicates that the state legislative body has independent authority over election proceedings. This is counter to the accepted interpretation of “Legislature” as the entirety of the state government. If ISLT becomes precedent, the ramifications would be extensive, including:
(i) Separation from state constitutional provisions, such as the right to secret ballots and restrictions on gerrymandering
(ii) The invalidation of the gubernatorial veto in the case of federal elections
(iii) Futility of independent election commissions, and their ability to investigate voter suppression and vote tampering claims
The legislature would have unchecked power to regulate elections with little transparency, starting with the redistricting process and ending with the election of representatives.
The Supreme Court has so far rejected attempts to harness ISLT in previous cases, but the upcoming Moore v. Harper case has cast uncertainty as to how the new heavily conservative bench will swing. The case is predicated on the passage of a partisan gerrymandered district map by the North Carolina legislature, and the North Carolina Supreme Court’s subsequent strike down of the map as violating the state constitution. The map was so heavily gerrymandered that an evenly divided state-wide popular vote would result in 10 seats for Republicans and only 4 Democratic seats in the U.S. House of Representatives. The Republican state legislative majority immediately challenged the ruling on the basis of the Elections Clause, and the Supreme Court will now decide whether it is constitutional for the state’s highest court to strike down redistricting maps. A ruling in favor of the North Carolina legislature would effectively make ISLT precedent.
The consequences of such a ruling would be disastrous for American democracy. Not only would gerrymandering become rampant and unchecked, but elections themselves would be detached from the will of the popular vote. The Presidential Electors Clause (Art2.S1.C2) contains the same wording as the Elections Clause concerning the legislature: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors…”. Applying the same interpretation of “legislature,” the selection of electors would no longer be in the hands of the populace but instead state representatives, who could choose to unilaterally elect their party’s nominee in spite of the popular vote. Challenges to the 2020 election in states such as Pennsylvania hinged on this idea, but were struck down. It would become far harder to do so if ISLT becomes a precedent.
The cases of Merrill v. Milligan and Moore v. Harper threaten the democratic institutions of the United States by abridging the voting power of large swaths of the population through gerrymandering and independent election control. Congress and the president would no longer lead a government of, by and for all the people. The ability for citizens to voice their opinions on highly contentious and relevant issues as they did in the recent midterms, from the economy to immigration and abortion rights, would be severely diminished. Regardless of the decisions, the significance of these cases on the political voice and democratic participation of every single citizen raises questions about the Supreme Court’s unchecked hegemony over interpreting our rights and liberties. It will be critical to watch how the Supreme Court will address the upcoming docket, as upon it rests nothing short of the political stability of our nation and its institutions.