Civics For Change: SCOTUS And Elections

The Supreme Court of the United States (SCOTUS) has taken on two independent cases — Moore v. Harper and Milligan v. Merrill — with impending results that could greatly impact the landscape of our elections and what we know about voting rights. Let’s take a look at the cases.

Moore v. Harper

In 2021, the Republican-dominated state legislature in North Carolina passed an extremely partisan gerrymandered map to secure the state’s 14 congressional seats. Because the Supreme Court of the United States ruled in 2019 that federal courts cannot hear cases on gerrymandering, voters contested the map in a state court, which agreed with them: This map violated the state’s “free elections clause.” The state court called the map an “egregious and intentional partisan gerrymander … designed to enhance Republican performance, and thereby give a greater voice to those voters than to any others.” 

However, the North Carolina legislature cited a misinterpretation of the independent state legislature theory (or “ISL theory”) in the Constitution, arguing there is constitutional precedent for the state legislature to run federal elections without any checks or balances from state courts or governors. They believe the independent state legislature theory enables them to violate the state’s constitution in redrawing maps without the state courts preventing or stopping them from doing so. 

The legislature then proposed another gerrymandered map, which led a North Carolina state court to mandate a fair map to be created by a special master for the 2022 Elections and beyond. Finally, two of the legislators petitioned SCOTUS to intervene and reinstate the heavily gerrymandered map. While SCOTUS has not yet discussed its decision to take on Moore v. Harper, in March, three justices (Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch) shared their support for the independent state legislature theory. 

Moore v. Harper boils down to these two questions: who runs U.S. Elections, and who sets Election Law? If SCOTUS rules in favor of the state legislature, the gerrymandered map will remain in North Carolina. Beyond that, if independent state legislature theory is adopted, voters nationwide would be left defenseless against partisan gerrymandering, giving states the go-ahead to redistrict and alter election laws without any checks or balances. If SCOTUS rules in favor of the state court and rejects independent state legislature theory, elections will continue functioning the way they have since our nation’s founding. The oral argument is set for December 7, 2022, so be sure to remain vigilant over the coming weeks as this case unfolds. 

Milligan v. Merrill

In November 2021, voters joined with civil rights and faith groups on a federal lawsuit to challenge laws that disenfranchised Black voters in Alabama: Milligan v. Merrill. The lawsuit cites the history of the white majority in Alabama using racial discrimination to maintain power. 

The congressional map drawn in Alabama violates both the 14th Amendment of the U.S. Constitution, which legally protects the process of elections from racial discrimination, and section two of the Voting Rights Act of 1965, which prohibits racial discrimination in the process of redistricting or determining other voting laws, either intentionally or by result. This map dilutes the power of Black voters in the state by “packing” Black voters into the 7th congressional district and then “cracking” Black voters into three separate districts, all to avoid drawing a second district where they could elect who they saw fit to lead their communities. Over 26% of Alabama’s population is Black, yet the way the map is drawn limits their ability to be heard. This type of attempted voter suppression is a dangerous threat to achieving equal representation in our democracy. 

Upon seeing the map drawn by the Alabama legislature, multiple plaintiffs sued due to its dilution of the Black vote. This led an Alabama district court to immediately reject the proposed map. SCOTUS then stepped in on emergency applications to pause the ruling from the lower court, which then put the previously-blocked map in place for the 2022 Midterm Elections. The results of the 2022 Midterm Elections in Alabama will provide more clarity surrounding how the map in question dilutes the Black vote. If SCOTUS decides to rule in favor of the Alabama legislature, most notably Secretary of State John Merrill, it could result in maps being redrawn nationwide, continuing to suppress the Black vote. This is extremely problematic all on its own, but is especially when we take into account how nearly one in three Black men will be incarcerated at some point in their lifetime. 

When a felony is committed, that person’s right to vote is taken away in 48 states. The Sentencing Project estimates that 4.6 million Americans were barred from voting in the 2022 Midterm Elections due to felony convictions. There are so many channels through which the Black vote has been suppressed throughout United States history – if SCOTUS rules in favor of the defendants, it will only worsen the issue, and would practically legalize racial discrimination in election proccesses. If SCOTUS rules in favor of the plaintiffs and determines the map violates the Voting Rights Act, the protections against racial discrimination in election processes embedded into the 14th Amendment would be upheld, and the maps would be redrawn to maintain the power of the Black vote in Alabama. 

What’s next?

While we await the Supreme Court to make a final ruling on both of these cases, today is a good time to remember how we have a say in election laws, too. We vote for those who make and pass laws, and in some states, we even get to vote to keep or replace state court judges like the ones involved in these cases. Our vote is such a powerful, instrumental tool in our democracy, which is why we need to ensure it is not suppressed through gerrymandering, felony convictions, poll taxes, and beyond. Continue to support organizations like The Andrew Goodman Foundation seeking to organize, advocate — and litigate when necessary — against voter suppression laws nationwide and to expand access to voting.


Mia Matthews is the Program and Communications Manager at The Andrew Goodman Foundation. In her position, she works with student leaders and in communications surrounding their work. She currently lives in Orlando, Florida.