Posted by Ryan J. Suto on July 20, 2018 in Blog

The past term the Supreme Court took on a number of important election-related cases. Several of these decisions have major implications for how Americans can vote and how districts can be created for the upcoming midterm elections and beyond. Discussed below are each of the Court’s holdings in the following cases, and what they mean for the future of U.S. elections: Husted v. Randolph InstituteGill v. WhitfordBenisek v. LamoneMinnesota Voters Alliance v. Mansky, and Abbott v. Perez.

The Purge: Husted v. Randolph Institute

The Court upheld, 5-4, the legality of an Ohio law which removes voters from the voter registration rolls. The Ohio law at issue uses a failure to vote for two years—not two elections, but two years—as an indication that a voter may have moved. To confirm that a voter has moved, Ohio sends a postage prepaid return card to the address on file. Ohio presumes that a voter has moved if the voter fails to return the card and fails to vote for four additional years, adding to a total of six years of non-voting. Once removed from the roll, an individual cannot vote, unless the voter re-registers at least 30 days before the next election.

The majority held that the Ohio law does not violate the National Voter Registration Act (NVRA), 52 U.S.C. §205, because the state law requires that Ohio sends mailed cards to voters, to be returned. The majority argued that the failure to return the mailed cards is reasonable evidence that a voter has moved simply because Congress said it is.

The joint dissenters focused on the intent of the NVRA, and argued that a person’s failure to vote is the sole basis on which Ohio identifies a voter as someone who has potentially moved, in violation of the NVRA. Separately, Justice Sotomayor dissented to chastise the majority for ignoring the history of efforts by states to disenfranchise low-income and minority voters, and the NVRA’s intent was to redress that history.

Regardless, Ohio may continue this policy. Reuters found in 2016 that 144,000 voters were removed from the rolls in Ohio’s three biggest counties, which happened disproportionately in Democratic-leaning, predominantly black neighborhoods. Expect this pattern to continue for the 2018 midterm elections and beyond with other states now free to enact laws which mirror the Ohio policy at issue. At present, six other states already have similar policies to the Ohio law and we can expect more states with conservative governments to join those ranks in the coming years, as this case is simply one example of the many voting rights cases across the country.

Beyond the courts, it is important to note that this decision was statutory, not constitutional. Congress is free to act again, by repealing or amending the NVRA, for example, to all but nullify this decision.

The Hurdle: Gill v. Whitford

While many commentators referred to this decision as a “punt,” the Court provided an impactful 7-2 decision on what gerrymandering cases can be brought in court and how those cases must be argued. This case involves the drawing of Wisconsin’s legislative districts, and the claim that the redistricting plan was a product of an intention partisan gerrymander which ensured Republican control in the state under any reasonably likely electoral outcome. The main argument involved an idea called the an “efficiency gap,” which compares each party’s number of votes cast for losing candidates and votes in excess of those needed for a winning candidate.

Chief Justice Roberts wrote the majority. He notes the constitutional requirements of bringing a case before the court: a case must involve an actual injury, on a particular person or set of persons, which can be addressed through the courts and not the political branches of government.

Here, the relief requested by those who brought the suit was that Wisconsin completely re-draw the state-wide legislative map. The Court clarified that if an individual’s vote is diluted from impermissible gerrymandering, the remedy is to re-draw “only such districts as are necessary to reshape the voter’s district,” and not re-create the statewide map. Thus, a plaintiff must prove in court that he or she lives in a gerrymandered district to prove injury, which the lower courts did not require. Writing for the Court, Roberts made an important declaration for future apportionment claims: “…This Court is not responsible for vindicating generalized partisan preferences. The Court’s constitutionally prescribed role is to vindicate the individual rights of the people appearing before it.” Kagan wrote an important concurrence in this case wherein she sought to provide a roadmap for future litigants hoping to successfully bring a gerrymandering case to federal court.

Immediately, Wisconsin can continue to use the Republican-favoring legislative map while the case goes back to lower courts for further litigation. More broadly, this more stringent interpretation of constitutional standing requirements will make increase the difficulty for finding and litigating future gerrymandering claims.

The Shrug: Benisek v. Lamone

In Gill v. Whitford a Republican-favoring map in Wisconsin was sent back to the lower courts. Here, a Democratic-favoring map in Maryland was sent back to the lower court. The per curiam ruling here mostly discussed the appropriateness of preliminary injunctions, so no more analysis here is relevant.

The Strike: Minnesota Voters Alliance v. Mansky

In a 7-2 option the Court struck down a Minnesota law which prohibited voters from wearing any “political badge, political button, or other political insignia” inside a polling place on Election Day. In this case, the majority wrote that states can restrict apparel at voting locations based on the message of that apparel, but that Minnesota’s specific formulation of a prohibition ushers forth more questions than answers: “the State must be able to articulate some sensible basis for distinguishing what may come in from what must stay out.”

The dissent, written by Justice Sotomayor and joined by Breyer, would have sent the case to the Minnesota Supreme Court to do the statutory interpretation performed by the majority. The impact of this holding is relatively low compared to the other cases in this term. Though the Minnesota law was struck down, the majority kept the door open for other laws across the country, or future laws in Minnesota which would need to be written a bit more specifically that the one at bar.

The Blind Eye: Abbott v. Perez

This case, in another 5-4 decision, revolved around a complex history of racial gerrymandering in the Texas State House and Congressional districts following the 2010 census. The Court reviewed the districts and found only one to be a racial gerrymander, whereas a lower court invalidated the entire map due to discriminatory intent.The majority framed the Voting Rights Act (VRA) as in conflict with the Equal Protection Clause of the Fourteenth Amendment, stating that it “pulls in the opposite direction,” despite the historical fact that both were passed with the intent to minimize the impact of slavery. This is in line with the Court’s 5-4 decision in 2013 to strike down crucial parts of the VRA in Shelby County v. Holder.

The Court, in citing precedent, noted that past racial discrimination by a state legislature does not shift the burden of proving present discrimination nor the presumption that the state legislature acted in good faith. The impact of this holding, as noted by Ian Millhiser, is that politicians “now enjoy an exceedingly strong presumption of racial innocence when they draw legislative maps” even when they have been shown to act discriminatorily in the past. Justice Sotomayor again wrote a dissent joined by Ginsburg, Breyer, and Kagan stating that minority voters, a majority within Texas, “...must return to the polls in 2018 and 2020 with the knowledge that their ability to exercise meaningfully their right to vote has been burdened by the manipulation of district lines specifically designed to target their communities and minimize their political will.”

The above cases, particularly Husted v. Randolph InstituteGill v. Whitford, and Abbott v. Perez, paint a bleak picture for voting rights in America. However, it is important to note that the Court can impact law by not deciding cases, as much as it can by deciding them. In March the Court declined to hear arguments challenging the Pennsylvania Supreme Court ruling that the state’s Congressional map violated the Pennsylvania state constitution. This allows state constitutions to be an avenue of advocacy for striking political gerrymanders in light of the Supreme Courts current decisions.

Taken together, this term of the Supreme Court has produced decisions which will make the electoral process more hostile to minority voters and to those currently out of power. Beginning in 2018, state lawmakers have an explicit green light to aggressively purge voters from the polls, even if they are disproportionately minority voters. Further, legislative bodies with a recent history of discriminatory intent in racial gerrymandering will be nonetheless presumed innocent of bad faith when creating new districts. And now, bringing suits which challenge political gerrymanders will be more onerous.

These holdings further stress the importance for advocacy organizations to vigorously support more inclusive voting laws such as  adopt automatic or same-day voter registration policies, which would eliminate many of the burdens faced by marginalized voters. And of course all Americans should assist our friends and family to exercise their civic duty—and fundamental right—to make their voices heard in government. Civic participation alone can curb the trend in courts and legislatures of undermining electoral democracy across the country.