How the Supreme Court could give Republicans more power with elections

As conservatives on the Supreme Court plan to take on affirmative action and gay rights this fall, the court will also hear two gerrymandering-related cases that could give Republicans in particular much more power in determining how people vote, or even whose vote counts, in the 2024 presidential election.

Here are the two big cases the court is looking at, and what they could mean for elections.

The case: When they redrew congressional lines this year based on new census data, Alabama Republicans packed Black voters into mostly one out of seven congressional districts, despite the fact that the state is about a quarter Black. Civil rights advocates sued, arguing that Republicans violated the civil rights era Voting Rights Act by not giving Black voters fair representation with a second majority-minority district. A lower court in Alabama agreed. And now the Supreme Court is going to hear the case.

(Both sides gerrymander when given the chance, but Republicans have more opportunity to do so because they control more state legislatures, which get to draw maps in most states.)

What the justices might do: This is one of the first cases out of the gate as the court starts a new term; arguments begin Tuesday. The justices already decided to keep the questionable Alabama map in place for the midterms. Now, the court is likely to ask whether Alabama, or any state, needs to take race into account at all when drawing congressional districts. Alabama argues it doesn’t because drawing congressional districts should be race-blind. But challengers argue that the Voting Rights Act was meant to ensure that a state with a history of discrimination, such as Alabama, should take race into account when trying to draw fair lines.

“The central question is: What’s the standard for deciding whether the state is giving fair representation to voters of color?” said Richard Briffault, an expert on state government at Columbia Law School.

Conservatives on the court have long been skeptical of race-conscious policies. They’ve been carving away at the Voting Rights Act for years, and this is another chance to do it.

“Alabama is likely to win because the court, I think, is going to see [the Voting Rights Act] … as putting the thumb on the scale of Black voters,” said Jaime Santos, an attorney who focuses on the Supreme Court, speaking recently on the SCOTUSblog podcast.

What it could mean for elections: It could make it easier for politicians to pack minorities into electoral districts, diluting their votes. It could make it more difficult for states to prop up independent redistricting commissions to draw less partisan and racially divisive districts. And it could mean fewer minority-elected members of Congress and state legislators.

Activists — and Democrats in particular — say this all makes it harder to communicate and organize politically in communities of color.

The case: It begins with another question about potentially illegal gerrymandering, this time in North Carolina, and whether Republican state lawmakers violated that state’s constitution by drawing overtly political maps. Here the justices are looking at a broad question of how much power courts should have over state legislatures.

What the justices might do: Seriously consider a once-marginal conservative theory that state legislatures alone — and no other structure of state power — have the ability to determine how elections are run. This is called the “independent state legislature doctrine.” It’s a controversial, extremely literal reading of the constitution, which says: “Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.”

That’s traditionally been interpreted to mean state legislatures, and also governors and state constitutions and state courts; basically that all of state government has a role in determining how to run elections.

But Republicans in North Carolina argued that the Supreme Court should allow them and only them to draw maps because the Constitution explicitly says the “legislature.” The Supreme Court is probably going to hear this case sometime next year.

What it could mean for elections: If a majority of the court agrees with North Carolina Republicans, they could give politicians unilateral authority to determine how to run elections, from redistricting, to voting rules, to even how to allocate electoral votes. At its most extreme, writes election law expert Richard Hasen, it could allow state legislatures to subvert the will of the voters and overturn election results. And it would be more difficult to use courts or the state constitution as a backstop, since the legislature would have all the power.

“It’s kind of unimaginable that a state legislature could act outside its own state constitution,” said Briffault of Columbia Law School.

Conservative justices started picking up interest in this theory around the time state politicians came under extreme pressure from Donald Trump and his allies to undermine or even reject popular votes in states they lost. They were largely rebuffed in 2020.

“I said, ‘Look, you are asking me to do something that is counter to my oath,’ ” testified Arizona House Speaker Russell “Rusty” Bowers (R) to the Jan. 6 House select committee about the pressure he faced from Trump to call the legislature back into session and change the results.

But what happens if the same pressure is applied in a future election, and politicians no longer feel constrained by courts or even their state constitution? The Supreme Court may open that door with this case.

“It suggests the vision of all-powerful state legislatures,” Briffault said, “at a time when there is incredible political polarization.”