For voting-rights advocates who strive to maximize participation in state and federal elections, the end of the Supreme Court’s October 2022 term in June brought both relief and cause for concern. In two critical decisions – Allen v. Milligan and Moore v. Harper – Chief Justice John Roberts showed that he is the final arbiter of voting-rights disputes at the Court, at least for now.
If the Court’s most recent term is prologue, it also reveals that, despite some positive developments, it is likely that ongoing and future civil-rights litigation will be contoured to satisfy, not an audience of nine, but an audience of one – a Chief Justice whose record on voting rights has been consequential, controversial, and frequently hostile to efforts to expand protection for voting-rights by lowering barriers to registration and voting.
The Roberts Court’s Dismal Record on Voting Rights
It’s important to note at the outset that any relief induced by the outcomes in Allen and Moore is partly a reflection of how far the Roberts Court has previously gone to dilute or curtail federal protection of voting-rights. The long shadow of cases like Shelby County v. Holder and Rucho v. Common Cause, for example, raised fears about further damage the Court might have inflicted to voting rights in Allen and Moore.
A 2013 case, Shelby County v. Holder found the then-existing federal formula put in place to determine which states had to submit proposed voting changes to the Department of Justice or a court for “preclearance” approval, based on their history of state-sponsored vote suppression, was outdated and thus no longer unenforceable. (This was a highly disputable conclusion based on the Court’s decision to ignore the evidence of ongoing racial suppression in voting.) Shelby County permitted the formerly covered states to enact new voter-suppression laws aimed at decreasing the votes of Black citizens by increasing the obstacles to, and costs of, voter registration and voting, through measures including photo-ID laws and limitations on early voting, and by wrongfully purging voters from the rolls.
In Rucho v. Common Cause, the Supreme Court controversially decided it lacked the power to even review – let alone prohibit – partisan gerrymandering. There, the Court signaled to the lower federal courts and litigants that such gerrymandering would be essentially immune from federal judicial oversight.
Taken together, the Supreme Court’s decisions in Shelby County and Rucho, and other more recent decisions, have made federal courts less hospitable fora to voting-rights litigation, especially where gerrymandering is concerned. These decisions have increasingly forced voting-rights advocates to attack barriers to voting through state-level legislation and litigation in state courts. Thus, it is no surprise that voting-rights proponents feared the outcomes in the Allen and Moore cases last term.
As to Allen and Moore specifically, the results in these two cases support several narrow conclusions about the Court’s voting-rights jurisprudence.
- The Court rejected unfounded and ahistorical readings of the Constitution (Moore, as to the Elections Clause) and the Voting Rights Act (Allen, as to §2(b) of the 1965 Voting Rights Act (VRA)).
- The Voting Rights Act is not entirely dead (per Allen).
- The “independent state legislature” argument (ISL) is still just an argument and not Supreme Court doctrine (per Moore).
On the other hand, those last two conclusions might be prudently qualified with “yet,” given the narrowing of grounds for voting-rights litigation accomplished in Shelby County, Rucho, and other cases.
And, the Court’s decision 23 years ago in Bush v. Gore – characterized by the Court at that time as a one-off with no precedential intent or effect – appears to have grown into a part of the Court’s voting-rights jurisprudence (per Moore at 28). As law professor Richard Hasen notes here, Moore is the first time the Justices have cited Bush v. Gore “…in a majority opinion in the 23 years since that decision.”
Citing Bush, Roberts acknowledged that, while federal courts should defer to state courts on matters of state constitutional interpretation, there are “outer bounds” when federal courts may need to police such rulings when they implicate the Elections Clause. Roberts further announced in Moore that the Supreme Court would make such determinations on a case-by-case basis.
The future effects of these two new decisions on districting and other voting practices and procedures – from registration and voting-ID requirements, through the when and where of polling locations and hours, and vote-tallying and auditing – are unknowable now. However, several non-specific likely consequences can be identified.
- Current litigation by voters of color that challenge districting on the grounds of racial discrimination – which the Brennan Center, a nonprofit organization that advocates for voting rights, recently estimated at 38 lawsuits in 12 states – might be on a stronger footing and result in the creation of several more minority-majority congressional districts after the Court’s recognition that the Voting Rights Act squarely addresses racial gerrymandering.
- Federal, state, and local election districts in several states might be reconfigured in time for the 2024 election, with potentially significant consequences for control of Congress and other elected state and local offices beyond 2024.
- Because of Moore, lawsuits challenging gubernatorial vetoes and judicial review of state legislative decisions about districting and other voting practices might be harder to win and more vulnerable to early dismissal, at least as to the issues settled for now in Moore.
Yet, as we have seen in the recent past, contradictory case law, statutory text, and history are often not enough to dissuade election deniers from launching litigation to overturn election results. (On the other hand, an effective disincentive to such litigation might be the spate of disciplinary proceedings launched against a number of the lawyers who brought factually groundless and legally frivolous challenges to elections processes and outcomes before and after Election Day in 2020.)
The Allen v. Milligan Opinion
In Allen, the Court held that Alabama’s districting plan for its 2022 congressional elections likely violated §2(b) of the VRA by packing most African-Americans into only one of Alabama’s seven congressional districts (approximately 14 percent of the state’s allotment of congressional seats), even though approximately 27 percent of the state’s population is African-American and has voted cohesively (Allen opinion at 14). The three Justices appointed by Democratic presidents (Jackson, Kagan, and Sotomayor) unexceptionally joined Roberts’ opinion for the Court, while Justice Kavanaugh joined most, but not all, of it.
Relying primarily on the text of the 1982 amendments to §2(b) of the VRA and cases subsequently construing it, the Court explicitly rejected Alabama’s attempt to turn the VRA into a race-neutral framework for districting – which might then be extended in future litigation to force race-neutrality on other voting rules and processes regulated by the VRA. (Essentially, Alabama argued that all the state needed to do to satisfy the VRA was to use facially race-neutral criteria to create districts, in this case by adopting geographically compact districts.) It should also be noted that, just weeks after the Court’s decision in Allen, the Alabama legislature again adopted a congressional districting plan designed to create only one Black-majority district.
The Allen opinion has the organization and content of a traditional judicial decision. It lays out the statutory text at issue, reviews pertinent constitutional and civil-rights history and litigation before and after the 1982 amendments and their legislative history, reviews the history of congressional elections in Alabama, summarizes the test established by the Court in Thornburg v. Gingles to review claims of effects-discrimination under §2(b), and reviews subsequent cases construing and applying amended §2(b) and the Gingles analysis.
Based on all of this, Roberts concludes that Alabama’s creating only a single majority-minority district likely violates §2(b)’s constitutionally lawful purpose and that the state’s argument for its race-neutral version of §2(b) would also contravene the purpose of amended §2(b) and all the ensuing decisions enforcing it.
The amended §2(b) VRA provision explicitly authorized consideration of, and remedies for, racially discriminatory effects of voting processes (for example, inability of the group discriminated against to elect its preferred candidates), even in the absence of proof of intentional race-based discrimination. The language of §2(b) could not be clearer in rejecting a requirement of intent to prove violations of the VRA. §2(b) states that a violation
…is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens. . . in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.
This history also may help explain Roberts’ assertion in Allen that §2(b) rejected any inference or interpretation that it entitled victimized voters to districts drawn to equal their arithmetic percentage of the population at issue. Roberts grounded this proposition on amended §2(b)’s proviso that “That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.” (Emphasis added.)
According to Roberts, the task in districting cases alleging racial discrimination in violation of §2(b) is, therefore, to navigate “between [race] consciousness and [race] predominance.” (Allen opinion at 23.) Roberts treats race-consciousness as permissible in districting but race-predominance, according to him, is prohibited by §2(b).
According to the Chief, race can be considered as a factor but not used to create any entitlement to a district, as would result from proportional representation: “Forcing proportional representation is unlawful and inconsistent with this Court’s approach to implementing §2.” (Allen opinion at 20).
“Unlawful” and “inconsistent,” however, are two different things. Roberts’ assertion in Allen that the VRA prohibits race-predominance is an expansive reading of the statutory language that “nothing in this section establishes a right” to proportional representation. “Nothing in this section establishes a right” is readily distinguishable definitionally from more proscriptive alternative language, such as “This section prohibits…”
The potential legal effects of the Allen decision might extend beyond districting. Although construed in Allen only as to districting, §2(b) generally states the test for any kind of violation of voting rights delineated in §2(a): “No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” (Emphasis added.)
So, Roberts’ race-consciousness interpretation of the §2(b) test applicable to racial-discrimination challenges to districting presumably also applies to a broad range of voting qualifications, prerequisites, standards, practices, or procedures. These could and should include registration requirements, voter-ID laws, and vote-challenges.
It is unpredictable how this will play out in litigation beyond districting. While this section of the VRA has been interpreted to apply beyond the districting context, the Court has already noted that this interpretation might be tightly constrained. In Brnovich v. Democratic National Committee, Justice Alito acknowledged that the VRA required that elections be “‘equally open’ to minority and non-minority groups alike” and that courts should use a broad totality of the circumstances test to ascertain whether state voting rules violate Section 2. That said, Alito created a test for evaluating such challenges, invoking “certain guideposts.” The Court found for Arizona in Brnovich, holding that its rules governing out-of-precinct voting and voting by mail were supported by the “state’s interest,” despite a manifest negative impact on minority voting.
Moreover, in this term’s college admissions cases concerning the role of affirmative action in the admissions process, in an opinion also written by Roberts, the Court dramatically curtailed the use of race as a diversity factor in an holistic college admissions process. The Court appeared to reject any consideration of race – apart from a student’s application essay that might speak of his or her personal experiences.
An additional, and significant, cautionary note is in order. As discussed below, Roberts’ comment about navigating the line between “consciousness” and “predominance” – implying that it’s a case-based and fact-intensive exercise and “difficult to discern” (Allen opinion at 23) – bears more troubling significance when viewed alongside the Moore decision.
The Moore v. Harper opinion
Moore concerns the Elections Clause (Article I, Section 4, Clause 1 of the Constitution). The Clause states that that “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”
In Moore, the Court held that state courts “retain the authority to apply state constitutional restraints when legislatures act under the power conferred upon them by the Elections Clause.” (Moore opinion at 29.) Five Justices fully joined Roberts’ opinion: Barrett, Jackson, Kagan, Kavanaugh, and Sotomayor. (Kavanaugh again wrote a separate concurring opinion.)
The Moore opinion traces the history of state and federal judicial review before and after ratification of the Constitution. It also surveys post-ratification Elections Clause decisions by state courts and the Supreme Court since the early 1900s. On this review, Roberts concludes that the Constitution countenances state court involvement in federal election oversight.
The Court, therefore, rejected the North Carolina legislature’s argument that the Constitution’s Elections Clause vests plenary authority in state legislatures to create congressional districts without any oversight from state court rulings that the maps are unconstitutional or illegal under state law (or, presumably, a governor’s veto of a legislature’s districting map).
Roberts relied on the extensive historical role of state courts in interpreting state constitutions; he declined to read the clause literally, given the weight of so much history and practice. So, as a result of Moore, the Elections Clause of the Constitution does not hermetically insulate state legislatures’ districting decisions and other voting regulations for federal elections from state court review for compliance with state constitutional and statutory provisions.
Relatedly – and perhaps not coincidentally – it may also be concluded that, after Moore, it will be increasingly difficult to predict when, how, and why voting rights will be protected in future decisions of the Supreme Court, lower federal courts, and state courts. Indeed, Roberts’ reasoning and conclusions in Moore echo Justice Potter Stewart’s famous observation in Jacobellis v. Ohio, a case about whether a movie theater manager could be criminally prosecuted for exhibiting a movie that the State deemed to be pornographic. Stewart concluded that certain criminal laws applied only to “hard-core” pornography, but he declined to provide a standard for what “hard-core” meant, observing “I know it when I see it.”
The troubling language in Roberts’ opinion is where it ends. After summarizing tests the Court might use to determine whether state court review of state legislatures’ decisions trespasses on legislative prerogatives under the Elections Clause, Roberts writes:
We do not adopt these or any other test by which we can measure state court interpretations of state law in cases implicating the Elections Clause. The questions presented in this area are complex and context specific. We hold only that state courts may not transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections.
Essentially, Roberts is saying that, given the complexity and variable facts of voting-rights cases, he won’t forecast how, when, or why any given state court’s conduct in relation to the Elections Clause might “transgress the ordinary bounds of judicial review.” He does let us know that state courts might so trespass, that the Court will decide when it sees such transgression, and that it will tell us then, and only then, that such transgression has occurred.
When these cases are considered in light of Roberts’ opinion in Rucho, where he rejected partisan gerrymandering claims as nonjusticiable, it is ever more clear that the Chief has made himself the Court’s ultimate authority on elections. In Rucho, even though advocates and lower courts had produced multiple statistically rigorous ways to determine extreme partisan gerrymanders (documented by Justice Kagan in her dissent), Roberts said it was not for the courts to decide. Roberts acknowledged that “Excessive partisanship in districting leads to results that reasonably seem unjust,” but he concluded “the fact that such gerrymandering is ‘incompatible with democratic principles’ does not mean that solution lies with the federal judiciary. We conclude partisan gerrymandering claims present political questions beyond the reach of the federal courts.”
Like Justice Stewart’s unwillingness in Jacobellis to define a test for pornography, Chief Justice Roberts now refuses to define Elections Clause transgression in any detail, but he will know it when he sees it. And, as the Chief Justice, Roberts holds the power to assign who writes opinions when he is in the majority. So far, he has frequently given that assignment to himself in the Court’s pre-eminent voting-rights cases. It seems likely the Chief Justice will continue to exercise this assignment power to control the development of Supreme Court case law on voting rights – and, perhaps, also in other areas of law where racial discrimination is at issue, as in the college-admission cases last term.
As the pivotal Justice who can tip the balance towards an outcome that is “race-conscious” or one that is “race-neutral” – and who, as Chief Justice, can additionally determine the author of any upcoming opinions – Roberts has become the most important arbiter of the right to vote in the United States. Expect future voting-rights litigation to focus on securing the approval of the Chief Justice, before and above all other members of the Court.