For 57 years, the Voting Rights Act has served as a remarkably effective bulwark against state-level attempts to restrict voting rights, particularly for Black and minority voters. But voting rights are under attack in state legislatures across the country, and the Supreme Court seems to be content allowing these attacks to continue without court challenge.

This retreat from defending voting rights began in 2013 with the Supreme Court’s 5-4 decision in Shelby County v. Holder.  Chief Justice John Roberts wrote the majority decision which effectively nullified Section 5 of the Voting Rights Act.  Previously, Section 5 required state and local governments to get “pre-clearance” from the federal government to make sure that proposed changes to voting laws did not negatively impact minorities.  Section 4 of the Voting Rights Act applied a formula set by Congress to determine which governmental entities were subject to the “pre-clearance” requirement of Section 5.  Chief Justice Roberts, joined by Justices Scalia, Kennedy, Thomas and Alito, concluded that Section 4 was unconstitutional because it was based on 40-year-old data.  So in effect, there is currently no way to apply Section 5 of the Voting Rights Act because Section 4 has been declared unconstitutional.

More recently, in February 2022, the Supreme Court issued a stay and granted certiorari in Merrill v. Milligan, yet again undermining the Voting Rights Act.

In Merrill v. Milligan, the Supreme Court, by a 5-4 vote on its “Shadow Docket”, effectively reversed a lower court’s ruling that Alabama’s new Congressional district map violated the Voting Rights Act by failing to give adequate voice to the state’s Black voters. More than 25 percent of Alabama’s population is Black (a percentage which increased in the 2020 Census), but Black voters make up a majority of voters in just one of the state’s seven Congressional districts per new maps drawn by the state’s Legislature.  The District Court found a violation of the Voting Rights and redrew the congressional districts to add another Black majority district.  The Supreme Court disagreed.

The Supreme Court’s granting of a stay fell roughly along political lines, with the Court’s conservative majority (Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett) voting to grant the stay of the District Court’s ruling and instead allowing the map as drawn by the state’s Legislature to be used for the upcoming election.  Interestingly, Chief Justice Roberts joined the Court’s more liberal Justices (Kagan, Sotomayor, Breyer) in opposing the stay and upholding the map drawn by the District Court. 

Technically, the Supreme Court simply issued a stay of the District Court ruling until the Court can have full briefing and oral arguments.  But the real-world consequence is that the disputed Alabama voting maps will be in use for the 2022 election—a huge defeat for those who sought to strengthen Black voters by having an additional Black majority district. 

The Supreme Court has also shown hostility toward challenges to redistricting and gerrymandering.  While voting rights advocates did win two key initial victories in North Carolina and Pennsylvania, the victories may be short-lived. In early March, the Supreme Court declined emergency requests from Republicans to block the use of court-drawn districts in those battleground states. The court-drawn maps replaced maps drawn by the Republican-controlled legislatures in those states, which state (not federal) courts found to be unfairly partisan.

In the North Carolina case, the state’s Supreme Court rejected the map drawn by legislators. A new map was drawn by a court-appointed panel, and should provide for more balanced representation for one of the country’s most “purple” states.

The Pennsylvania Supreme Court made a similar ruling in Toth v. Chapman. Gov. Tom Wolf vetoed a new voting map drawn by the Republican-controlled Legislature, leading the state’s Supreme Court to implement a map drawn by an independent, third-party expert. 

What is most troubling however, is that it appears that four of the justices are ready to remove state courts completely from reviewing state legislatures’ actions in redistricting.  In seeking stays of the court-appointed maps, the state legislatures asserted a position known as the “Independent State Legislature Doctrine.” In short, this theory proposes that state legislatures alone have the authority, under the U.S. Constitution, to oversee federal elections.  The theory relies on the Article I, Section 4, Clause 1, of the Constitution which reads: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislatures thereof; but the Congress may at any time by Law make or alter such Regulations.”  Based on this language, the Independent State Legislature Doctrine provides that state constitutions and state supreme courts may not supersede a state legislature’s authority in federal election matters. So in short, the state legislatures would have free reign to redistrict without any judicial review. 

Four of the Supreme Court’s conservative Justices (Thomas, Alito, Gorsuch and Kavanaugh) previously have indicated that they are receptive to the Independent State Legislature Doctrine. Justice Kavanaugh sided with the majority in the North Carolina case, citing his unwillingness to throw the 2022 election into chaos. But he left the door open to revisit the Independent State Legislature Doctrine question in the future.

In essence, the Supreme Court is slowly dismantling the Voting Rights Act of 1965 and now also seems prepared to remove state courts from reviewing the actions of state legislatures when they draw new district lines.  More is almost certain to come on these important issues.