Voting Rights on Trial: The Future of Redistricting and Representation in the U.S.

Voting Rights on Trial:

The Future of Redistricting and Representation in the U.S.

May

Malik Neal,JohnR.LewisSocialJusticeFellow

Introduction

In 2023, nearly sixty years after the passage of the Voting Rights Act of 1965, voting rights and representation—and consequently, the fate of U.S. democracy—hang in the balance. In early summer, the U.S. Supreme Court will issue decisions in two consequential cases, Merrillv.MilliganandMoorev.Harper . The two lawsuits, one out of Alabama and the other out of North Carolina, will collectively determine the efficacy of federal guardrails against racial gerrymandering and the extent of state legislatures’ power over election rules. Put simply, these cases could drastically limit the ability of voters, especially Black and other voters of color, to challenge suppressive voting laws and overturn discriminatory maps. The timing of these cases could not be more critical. They come on the heels of the 2021-2022 redistricting cycle, during which many states redrew congressional maps that weakened the voting influence of Black communities.1 Moreover, the cases coincide with a surge in the introduction and enactment of restrictive voting laws nationwide. In January 2023 alone, at least 32 states have pre-filed or introduced 150 laws that limit access to voting.2 Studies have shown that restrictive voting laws disproportionately impact voters of color and widen the racial turnout gap after enactment.3 The extent to which these disparities will either worsen or improve hinges largely on the U.S. Supreme Court’s actions this summer.

This policy brief assesses the current voting rights landscape with a particular focus on Merrill and Moore, analyzing who will be impacted and what is at stake. The brief evaluates both cases’ key issues and arguments. It also provides a contextual overview of the events that have led to the current voting rights crisis and outlines the potential outcomes of the cases and their consequences, especially for Black Americans.

Two Cases: Diverging Perspectives

MERRILL V. MILLIGAN

Merrillv.Milligan involves a claim brought by Black Alabamians challenging the state’s congressional maps drawn in 2021. The petitioners argued the maps violate Section 2 of the Voting Rights Act (VRA) of 1965, which prohibits racially discriminatory voting practices and dilution of voting power based on race.”4 The petitioners asserted that Alabama officials concentrated most of the state’s Black voters in one large, sprawling district while spreading out the remaining Black voters across predominantly white districts, a tactic known as “packing and cracking” (see Figure 1).5 Under the redrawn map, Black people are the majority in only one congressional district (District 7) despite growing since the last maps were drawn and making up around 27% of the state’s voting population today.

In January 2022, a three-judge panel of the Federal District Court of Birmingham— including two judges appointed by President Donald Trump—agreed with the petitioners and struck down Alabama’s map. The lower court directed the state legislature to produce a map with another majority-Black district, or “an additional district in which Black voters otherwise have an opportunity to elect a representative of their choice.”6 Following the decision, Alabama quickly appealed to the Supreme Court.

Source: Brennan Center Elections

Alabama contended that creating a second majority-Black district would amount to “racebased sorting” and violate the Constitution. They asserted that Alabama’s algorithmgenerated map was developed in a “race-neutral” manner. “Section 2, as constitutionally conceived, is a shield against racial discrimination,” Alabama’s lead counsel argued. “It is not a sword to perpetuate it.”7 In response, the petitioners argued that map drawers have historically used race to sort communities, and Alabama’s drawers were no different. They further argued that “race-neutrality” contradicts the very purpose of Section 2 of the VRA and that ruling in favor of Alabama would “leave Black voters and entire swaths of the country with no ability to elect their preferred representatives.”8 In the Merrill case, the Court will determine whether Alabama’s new map breaches Section 2 of the VRA, and by doing so, establish the degree to which Section 2 can be employed to counter alleged racial gerrymandering. The decision holds the potential to either foster or hinder meaningful political representation for Black voters and other communities of color across the nation.

MOORE V. HARPER

Like Merrillv.Milligan , the Moore v. Harper case began with a lower court invalidating a congressional map as unconstitutionally gerrymandered. In 2021, the Republican-led North Carolina legislature drew a map to secure more seats for their political party. The state Supreme Court rejected the map and appointed a nonpartisan “special master” to create a new map that evenly divided North Carolina’s 14 districts, with six safe seats for each party and two toss-up seats (See Figure 2). The legislature appealed to the U.S. Supreme Court, arguing that state courts cannot invalidate maps passed by the legislature under the recently popularized Independent State Legislature (ISL) theory. In Moore, the Court will decide on the theory’s constitutionality.

Old Map (Drawn by Legislator)

New Map (Drawn by Courts)

In their argument, the petitioners (i.e., the legislators) contended that the special master’s remedial congressional map violated the Elections Clause of the U.S. Constitution. The clause stipulates that the “time, places, and manner of holding elections [for federal office] shall be prescribed by the States and Legislature there of.”9 They argued that the Elections Clause’s language confers on North Carolina exclusive legislative authority to draw its congressional maps. Meanwhile, the respondents (i.e., North Carolina voting rights organizations) asserted that ISL theory lacks legal precedent and would nullify hundreds of state constitutional provisions.

How Did We Get Here?

It is crucial to note that the current voting rights crisis did not arise spontaneously. It is the culmination of years of systematic barriers faced by marginalization communities, including Black Americans and other communities of color. The U.S. Supreme Court has largely sanctioned the continued presence of these barriers.

Over the last decade, the Supreme Court has significantly weakened the Voting Rights Act of 1965, which is considered one of the most important civil rights laws in U.S. history. In 2013, in Shelbyv.Holder , the Court essentially nullified Section 5 of the VRA, which mandated federal preclearance of changes to voting procedures in states with a history of racial discrimination.10

In 2021, in Brnovich v. Democratic National Committee , the Court further eroded the VRA’s authority by ruling that Arizona’s discriminatory election policies did not violate the VRA’s Section 2 ban on racial discrimination because racially discriminatory intent could be proven.11 The ruling in Brnovich raised the bar for challenging voting laws and policies, dealing a severe blow to the VRA. The Court’s decision in Merrillv.Milligan will determine the vitality of Section 2 of the VRA, one of the few remaining tools for protecting minority voters.

As legal avenues to challenge discriminatory voting laws have eroded, a surge of restrictive voting laws have been introduced in state legislatures. In 2022 alone, lawmakers in 39 states considered at least 408 restrictive bills.12 Half of all states have imposed new barriers to voting over the past decade, including strict voter ID and “exact match” laws.13 Proponents of voter ID laws argue that they combat voter impersonation fraud and impose minimal burdens on voters. Still, research consistently shows that voter impersonation fraud is rare. These voter ID laws remain barriers, as, millions of Americans, including 25% of Black voters, lack government-issued photo IDs.14 Georgia’s 2017 “exact match” laws mandated perfect matches between voters’ registration and identification records, resulting in 80% of those blocked being people of color.15 Despite appearing race-neutral, these laws disproportionately harm Black and other voters of color, reducing turnout and engagement in these communities.16

Further, the 2020 Census redistricting cycle revealed evidence of gerrymandering aimed at communities of color. For instance, in 2021, the South Carolina legislature drew congressional maps that were eventually found unconstitutional by a federal court for being racially gerrymandered.17 Later that year, Governor Ron DeSantis of Florida gerrymandered one of Florida’s predominately Black majority districts (District 5) and divided its voters into Republican-leaning districts (see Figure 3). The new map dismantled the North Florida congressional seat held by Rep. Al Lawson, a Black Democrat. The fate of these maps and laws rests heavily on the outcome of Merrill and Moore .

Potential Outcomes & Ramifications

While it is impossible to predict how exactly the Supreme Court will rule in either case, there are a few likely scenarios given the current composition of the Court.

IN MERRILL V. MILLIGAN:

1. The Court could issue a limited ruling concluding that the district courts erred in applying the Section 2 framework. If such a ruling were made, it would mean that lower courts applied the established law to the facts incorrectly, and that the maps were not racially discriminatory.

2. The Court could adopt a middle-ground approach and significantly modify the Section 2 framework. Such a ruling would involve introducing a new method for handling all redistricting challenges. As mentioned earlier, the Court used a similar tactic in Shelby v. Holder concerning Section 5 of the VRA.

3. At the most extreme end of the spectrum, the Court could declare Section 2 unconstitutional, holding that it conflicts with Congress’s authority to enforce the 14th and 15th Amendments’ ban on discriminatory intent. If this type of ruling were to occur, it would effectively make the VRA powerless.

If the Court curtails Section 2’s involvement in redistricting, the implications could be substantial. The Supreme Court’s decisions in Shelby and Brnovich have already weakened the VRA’s capacity to address allegations of racial gerrymandering and voter suppression. With Milligan serving as the third VRA case in recent years, its outcome could potentially deliver a decisive blow to the VRA’s power and efficacy. The outcome will likely not only sanction Alabama’s map, but it could also give license to other states to implement racially discriminatory maps that dilute Black voting power. In 2020-2022, South Carolina, Georgia, Louisiana, Tennessee, Texas, and Wisconsin have already proposed racially gerrymandering maps limited to Black majority districts and could go into effect uncontested.

IN MOORE V. HARPER:

1. The Court could accept the most aggressive form of ISL theory, removing a state court’s control oversight over federal election rules.

2. The Court could adopt a weaker version of the ISL theory, limiting state judicial power to “procedural” constitutional provisions (i.e., limited only to requesting changes to process) rather than “substantive” provisions (e.g., drawing maps). Several justices spent considerable time in oral arguments trying to figure out precisely what such a distinction would look like in various scenarios.

3. The Court could dismiss the case on legal grounds. After the 2022 elections, the Republicans regained control of the North Carolina Supreme Court and subsequently announced their intention to rehear the lawsuit challenging the gerrymandering maps. On April 28, 2023, the new Republican majority of justices overturned their own past ruling which declared partisan gerrymandering illegal. Now, as the North Carolina Supreme Court has sided with the legislature and nullified the previous ruling, the U.S. Supreme Court may not decide on the case since there is no dispute for the federal justices to resolve.

The outcome of Moorev.Harperwill have implications that extend far beyond North Carolina. It will establish what, if any, limitations exist on state legislatures’ ability to oversee elections. Additionally, if the Supreme Court sides with the North Carolina lawmakers, it could significantly undermine Section 2 of the Voting Rights Act and grant states nearly unrestricted authority to enact restrictive voting laws. A Court ruling favoring the ISL theory could also have enormous implications for the 2024 election and beyond, as states are responsible for choosing electors for the electoral college. As a former Fifth Circuit judge John Luttig noted, Mooreis the “single most important case on American democracy —and for American democracy— in the nation’s history.”18

Policy Recommendation

While the outcomes in Merrillv.Milliganand Moorev.Harperare still uncertain, the future of voting rights and protections is in the untenable position of resting with the Court, underscoring the pressing need for federal action. To safeguard voting rights for all Americans and restore faith in the democratic process, Congress must enact, and the President must sign, the JohnLewisVotingRightsAdvancementActinto law.19 This legislation would offer a comprehensive federal solution to several of the issues currently under consideration by the Court and thus restore essential voter protections. It would:

Restore federal oversight of election laws in states by requiring states with a recent history of discrimination to obtain federal approval before making any changes to their voting laws;

Provide new tools to the Department of Justice to combat discriminatory voting laws and practices;

Expand the availability of federal resources to protect voting rights, including additional funding for voter education and training and for the protection of polling places and election infrastructure;

Allow individuals and organizations to seek preliminary injunctions against discriminatory voting laws and practices; and

Strengthen transparency and accountability in the election process, including requirements for states to disclose changes to their election laws and to notify voters of changes that could affect their ability to vote.

While the House of Representatives passed the JohnR.LewisVotingAdvancementAct on August 24, 2021, the bill failed to pass in the Senate three months later, and again on January 19, 2022. A vote to exempt the bill from the Senate filibuster also failed. Despite these setbacks, the urgent need to protect voting rights remains. Congress must prioritize passing the JohnR.LewisVotingAdvancementAct, even if it requires an exception to the filibuster. No procedural rule should stand in the way of protecting the fundamental right to vote. In 2023, voting rights and protections are on trial, and their fate remains uncertain. This summer, the outcome of two pending Supreme Court cases could either fortify or upend our country’s election landscape.

The late Congressman John R. Lewis, namesake of the Voting Rights Advancement Act, who nearly lost his life 60 years ago marching for voting rights for Americans, once declared, “Voting is precious. It’s almost sacred. It’s the most potent nonviolent tool we have in a democratic society, and we must use it.”20 Yet today, in the absence federal intervention, the strength of this tool, powerful as it may have been, is bound to wane for present and future generations.

References

1 Wiley, E. (2022). Why race matters in redistricting: Protecting black power; preserving democracy. NAACP Legal Defense Fund. https: //www.naacpldf.org/redistricting-racism/

2 Restrictive bills have been pre-filed or introduced in Alaska, Arizona, California, Connecticut, Hawaii, Illinois, Indiana, Iowa, Kansas, Maine, Maryland, Massachusetts, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Hampshire, New Mexico, New York, North Dakota, Oklahoma, Oregon, Rhode Island, South Dakota, Tennessee, Texas, Utah, Virginia, Washington, West Virginia, and Wyoming. Voting Laws Roundup: February 2023. (2023). Brennan Center for Justice. https://www.brennancenter.org/our-work/research-reports/voting-lawsroundup-february-2023

3 Kuk, J., Hajnal, Z., & Lajevardi, N. (2020). A disproportionate burden: strict voter identification laws and minority turnout. Politics, Groups, and Identities, 10(1), 126–134. https://doi.org/10.1080/21565503.2020.1773280

4 Section 2 of the voting rights act. (2021). Department of Justice. https://www.justice.gov/crt/section-2-voting-rights-act

5 Avery, D. (2022). Gerrymandering: The Greatest Threat to Voting in America. CNET. https://www.cnet.com/news/politics/gerrymandering-thegreatest-threat-to-voting-in-america/

6 Trotta, D. (2022). U.S. court rejects Alabama redistricting as violating Black voting rights. Reuters. https://www.reuters.com/world/us/newyork-democrats-will-control-redistricting-after-bipartisan-panel-fails-2022-01-24/

7 Carlisle, M. (2022). The Supreme Court Could Gut the Voting Rights Act Even Further. Time. https://time.com/6218066/supreme-court-votingrights-act-merrill-v-milligan/

8 Ruger, T. (2022). Supreme Court told minority representation at stake in case. Roll Call. https://rollcall.com/2022/10/04/supreme-court-toldminority-representation-at-stake-in-case/

9 Clause I. (2022). Cornell Legal Information Institute. https://www.law.cornell.edu/constitution-conan/article-1/section-4/clause-1

10 U.S. Supreme Court. (2013). Shelby County v. Holder, 570 U.S. 529 (2013). Justia Law. https://supreme.justia.com/cases/federal/ us/570/529/#tab-opinion-1970752

11 U.S. Supreme Court. (2021). Brnovich v. Democratic National Committee, 570 U.S. 529 (2013). Justia Law. https://supreme.justia.com/cases/ federal/us/594/19-1257/#tab-opinion-4446158

12 Voting Laws Roundup: December 2022. (2022). Brennan Center for Justice. https://www.brennancenter.org/our-work/research-reports/ voting-laws-roundup-december-2022

13 Ibid

14 Johnson, T. (2020). The New Voter Suppression. Brennan Center for Justice. https://www.brennancenter.org/our-work/research-reports/newvoter-suppression

15 Ibid

16 Morris Kevin. (2021). Large Racial Turnout Gap Persisted in 2020 Election. Brennan Center for Justice. https://www.brennancenter.org/ourwork/analysis-opinion/large-racial-turnout-gap-persisted-2020-election

17 Pollard, J. (2023). South Carolina US House district ruled racial gerrymander. AP NEWS. https://apnews.com/article/politics-south-carolinastate-government-hilton-head-island-charleston-9f48c6c7668b7b9404a7a9335d3a195a

18 Sherman, M. (2022). Supreme Court weighs “most important case” on democracy. AP NEWS.

https://apnews.com/article/us-supreme-court-north-carolina-legislature-50f99679939b5d69d321858066a94639

19 John Lewis Voting Advancement Act, H.R. 4, 117th Congress (2021) https://www.congress.gov/bill/117th-congress/house-bill/4

20 Rep. John Lewis: “Your Vote Is Precious, Almost Sacred.” (2012). PBS NewsHour. https://www.pbs.org/newshour/show/rep-john-lewis-your-vote-is-precious-almost-sacred

CENTER FOR POLICY ANALYSIS AND RESEARCH

Voting Rights

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