The Supreme Court is gearing up next term to wade into two major battles over how Americans vote in elections, with cases over how much of a role race plays in drawing voting districts and who has the final say on election procedures.
Progressive lawyers are bracing for their worst fears to be realized, saying if the justices rule against them in both cases, it would “upend” the Democratic process.
“The two lawsuits could drastically limit the ability to attack suppressive voting laws and protect voters in court,” Marc Elias, who was Hillary Clinton’s campaign lawyer, warned on Twitter.
A case out of Alabama goes to the heart of Section 2 of the Voting Rights Act of 1965, which bars states from making changes to voting laws that purposely discriminate based on race, ethnicity or language.
A federal three-judge panel ruled against Alabama’s attempt to draw lines for its seven congressional districts after the 2020 Census, saying a state where Black residents make up 27% of the population should have two majority-Black districts.
State officials, who have appealed the panel’s ruling to the justices, say they took a race-neutral approach to drawing their maps, barely changing them from the previous set, and leaving Alabama with one majority-Black district.
The state says that if it is forced to create a second Black-dominated district that would effectively be elevating race above all other considerations in the map making.
The Supreme Court in a 5-4 ruling earlier this year stayed the lower court decision, meaning November’s elections will take place under the state’s preferred map.
The justices’ willingness to take up a Voting Rights Act case is worrying to liberal activists.
They are still reeling from a 2013 ruling when the justices, in a 5-4 decision, said the law’s Section 5 process — which gave the Justice Department a veto over election changes in some states with a history of racism — was outdated.
Eugene D. Mazo, a law professor at Seton Hall University, said the justices now appear ready to limit the ways the anti-discrimination provisions in Section 2 can be wielded against states.
“The Supreme Court has tried to cabin the effect of the Voting Rights Act,” Mr. Mazo said. “My view is they are going to try to cut back on Section 2.”
The case, Merrill v. Milligan, will be heard in the first week of the Supreme Court’s new term that opens in October.
The justices have yet to set oral argument for the second case, Moore v. Harper, which comes out of North Carolina and also involves that state’s congressional maps.
A state court struck down North Carolin’s map and imposed its own map.
GOP lawmakers say the U.S. Constitution’s Election Clause gives state legislatures final say at the state level over “the Times, Places and Manner of holding Elections for Senators and Representatives.” The lawmakers say state courts shouldn’t be able to overturn legislative decisions.
Elliot Mincberg, a senior fellow at the progressive advocacy group People For the American Way, said if the justices side with North Carolina’s GOP lawmakers state legislatures could “do whatever they want to when it comes to elections.”
The way the 2020 elections played out looms large over the North Carolina case, with experts wondering if the high court might embolden state legislatures to pick their own slates of presidential electors in future contests should the results not align with their expectations.
President Trump’s legal team in 2020 pushed legislatures to do just that after that year’s presidential election.
Derek T. Muller, a law professor at the University of Iowa, said even if the Supreme Court rules for the challengers in each case, that doesn’t necessarily mean broad changes.
The Alabama case could result in only minor tweaks to how states approach redistricting under the Voting Rights Act, he said. Or the justices could rule Section 2 unconstitutional.
In the North Carolina dispute, he said the justices could deliver a ruling limiting state courts’ role but not ousting them from review altogether.
But if the justices did give state legislatures increased authority, Mr. Mueller predicted federal legislation would soon follow.
“That would put more pressure on Congress to regulate elections or on federal courts to patrol what state legislatures are doing. But if that more dramatic change happens, it again likely would take years to come to fruition,” he said.
