Hello, and Happy Thursday,
In the fall of 2017, I was sitting in the cramped press area at the supreme court as a lawyer named Paul Smith urged the justices to strike down the districts for the Wisconsin state assembly. They were so distorted in favor of Republicans, he argued, that they violated the US constitution. As Smith started to lay out his case, Chief Justice John Roberts cut in and laid out what he feared would happen if the supreme court were to step in and start policing electoral maps based on partisanship.
“We will have to decide in every case whether the Democrats win or the Republicans win. So it’s going to be a problem here across the board. And if you’re the intelligent man on the street and the court issues a decision, and let’s say the Democrats win, and that person will say: ‘Well, why did the Democrats win?” Roberts said. “It must be because the supreme court preferred the Democrats over the Republicans. And that’s going to come out one case after another as these cases are brought in every state. And that is going to cause very serious harm to the status and integrity of the decisions of this court in the eyes of the country.”
The supreme court eventually upheld the Wisconsin districts on technical grounds. But in 2019, the court removed itself and the entire federal judiciary from policing partisan gerrymandering. “Partisan gerrymandering claims present political questions beyond the reach of the federal courts,” Roberts wrote. He pointed to state courts as one potential forum where litigants could bring claims. Together, those two moments underscore how wary Roberts was of getting the court entangled in redistricting cases, highly politically charged disputes that could pose a serious threat to the court’s apolitical reputation.
That’s why it was so stunning to see the supreme court intervene last week over Wisconsin’s new legislative maps. Instead of staying out of a redistricting dispute, the supreme court went out of its way to insert itself into the center of a dispute in one of America’s most politically competitive states.
The Wisconsin case that arrived at the supreme court this year was a bit different from the one it considered in 2017. This time around, the state’s Republican legislature was challenging the state legislative districts that the Wisconsin supreme court picked for the state. Even though Republicans would still hold their majority under the new map, lawmakers took issue with the creation of an additional Black-majority district near Milwaukee. They said there wasn’t adequate justification for creating it, and made an emergency request to the supreme court to block the maps.
In a seven-page unsigned opinion, the supreme court accepted that request last week. But it went further, using the case as an opportunity to interpret the Voting Rights Act in a narrow way without full briefing or oral argument in the case. Even longtime court observers were baffled.
It’s no secret that the supreme court has been extremely hostile to voting rights recently. But what has changed is the “velocity” that the court is acting with, Richard Hasen, an election law expert at the University of California, Irvine, told me.
“The supermajority of the conservative justices on the supreme court has become pretty emboldened. They’ve got a narrow vision of the scope of the Voting Rights Act. And they are not being shy about enforcing that as quickly as they can,” he told me. “What’s changed is how much more aggressive they’re willing to be.”
That increased aggressiveness may in part be a function of the supreme court’s increased conservative majority. Back in 2017, when the court heard the first Wisconsin case, Anthony Kennedy was the swing justice on a court divided 5-4 between liberals and conservatives. Now, Kennedy is gone and conservatives have increased their majority to 6-3.
Experts aren’t just alarmed by what the supreme court has been saying about voting rights, but also the way they have been going about it. The court had embraced an idea recently, called the Purcell principle, that courts should not upset the status quo when an election is near. But the justices have been inconsistent in how exactly it has applied that rule and have not really said how close an election must be before courts can’t intervene.
In early February, for example, Justices Brett Kavanaugh and Samuel Alito said it was too close to Alabama’s 24 May primary to impose a new congressional map that would have increased Black representation. But in early March, when Kavanaugh made the same argument for upholding North Carolina’s congressional districts ahead of its 17 May primary, Alito, joined by Clarence Thomas and Neil Gorsuch, said it was not too close.
And in the Wisconsin case, state election officials said any ruling that came after 15 March would “increase the risk of errors” as it prepared for its primary election in August. The supreme court intervened nine days after that deadline.
“It is a sign that many of the brakes have come off,” Stephen Vladeck, a law professor at the University of Texas told me. “It’s a sign that the court is increasingly willing to do whatever the court wants to do, procedural constraints and sort of awkward timing nonwithstanding.”
Also worth watching …
Anyone who isn’t in jail or prison for a felony can vote, a three-judge panel in North Carolina ruled on Monday. The decision could affect up to 56,000 people in the state, though election officials aren’t letting people with felonies register just yet.
Arizona Republicans passed a law requiring new voters to prove their citizenship to vote in a presidential election, which is probably illegal.
Ohio voting rights groups are fuming after Republicans did a bait-and-switch to try again and get the state supreme court to approve gerrymandered maps.
A committee of Georgia lawmakers stopped a proposal, for now, that would have expanded the Georgia bureau of investigation’s ability to investigate voter fraud, among other measures.
