The Supreme Court has done it again. It has placed its thumb firmly on the scale in favor of politicians, deferring to their election rules at the expense of voters.
The latest harm comes in a case from South Carolina, where the 6-3 conservative majority rejected an argument that the state’s redistricting map hurts minority voters. The lower court had found that the map was an unconstitutional racial gerrymander, but the Court reversed the detailed factual findings that underpinned the lower court’s decision.
The Court’s unduly deferential approach to the Palmetto State’s politicians permeates its opinion, beginning with two startling propositions in the introduction: “A legislature may pursue partisan ends when it engages in redistricting” and “We start with a presumption that the legislature acted in good faith.”
The first statement goes even further than the Court’s 2019 opinion in Rucho v. Common Cause when it refused to address partisan gerrymandering but did not explicitly endorse the practice; the second claim offers blind trust to politicians in the very area—election law—where they are most self-interested.
The South Carolina racial gerrymandering opinion is another in a line of recent cases from the Roberts Court that have made things a lot worse for voters.
To understand today’s voting rights jurisprudence and the harms it is causing, we must go back to the 1960s, when the Court expanded the franchise instead of restricting it. In the 1960s, the Supreme Court, under Chief Justice Earl Warren, issued numerous decisions elevating the importance of the right to vote in our constitutional structure. Its redistricting decisions required states to redraw legislative maps that had not been updated in decades to ensure equally sized districts, which ultimately infused a measure of equality in representation. The Court struck down Virginia’s poll tax law, which had a disproportionate impact on racial minority voters. It rejected New York’s attempt to limit voter eligibility. It upheld Congress’s protection of minority individuals through the Voting Rights Act of 1965, one of the most important civil rights statutes ever enacted.
Perhaps more important than the specific rulings was the constitutional test the Court set out for voting rights in these cases: close judicial scrutiny of a state’s voting rules. States had to justify their election laws by pointing to a “compelling” interest—that is, a really significant justification. States also had to demonstrate that their voting rules were “narrowly tailored”—or that there was a close fit between the rationale for a voting law and how it achieved its purpose. In legal terms, the Court would strike down an election rule unless the state could satisfy the judicial test known as “strict scrutiny,” which is a very high bar.
But, as I show in my new book, The Court v.The Voters, in the 1970s, 1980s, and 1990s, the Court pulled back from close judicial scrutiny of voting laws. Today, the Court is much more deferential to state election rules, which harms everyday voters. In 1983, the Court issued a decision in Anderson v. Celebrezze that struck down an Ohio law that had made it difficult for independent presidential candidate John Anderson to appear on the ballot in 1980, and while that specific holding seemed pro-democracy, the written opinion marked a change by creating a new test that relaxed the scrutiny the Court had previously given to voting laws. In 1992, in Burdick v. Takushi, the Court went beyond the Anderson test, upholding Hawaii’s ban on write-in voting and making it even easier for states to justify their restrictive voting rules. In 2008, in Crawford v. Marion County Election Board, the Court refused to invalidate Indiana’s photo identification requirement for voting—despite substantial evidence that it would harm certain groups of voters, including racial minorities—while allowing the state to rest on assertions of promoting election integrity or administrative needs to support its laws. These three cases—the harmful “ABC trilogy” (Anderson, Burdick, Crawford)—planted the seed for the Court to grant even greater deference to state legislatures.
The Supreme Court, under Chief Justice John Roberts, has let that seed blossom into a deadly weed, where politicians are given free rein to rig the election rules to retain power. Simply put, today’s Court is anti-voter.
The Court often cites the ABC trilogy to offer undue deference to politicians. Voting rights, however, are the one area where we should trust politicians the least, as they have every incentive to enact election rules that will help to keep themselves in office. In this way, the current approach undermines the right to vote and representative democracy.
The Roberts Court pretends to take an incremental approach, but the conservative majority’s attempt to hide behind a façade of modesty in its voting rights jurisprudence should fool no one. For example, it first raised ���serious constitutional questions” about Section 5 of the Voting Rights Act in 2009 before gutting Section 5 in 2013 in Shelby County v. Holder, and even then, it invalidated only the coverage formula that determined which states were subject to preclearance under Section 5 instead of striking down Section 5 itself. This approach was faux judicial restraint: everyone knew that the Shelby County ruling effectively killed off Section 5, one of the most important tools to prevent many jurisdictions, mostly but not entirely in the South, from enacting discriminatory voting laws. In dissent, Justice Ruth Bader Ginsberg wrote that “the Court errs egregiously” in neutering “one of the most consequential, efficacious, and amply justified exercises of federal legislative power in our Nation’s history.” Not surprisingly, racial disparities in voting have increased in states required to seek judicial or Justice Department preapproval for their election rules under Section 5.
In other situations, the Court has slow-walked its review to make it seem like it is carefully considering election laws when, in reality, it is creating delays that allow states to use harmful laws for upcoming elections. Alabama implemented an illegal map in 2022 after the Court put a lower court decision invalidating the map on hold. After the election, the Court eventually agreed with the lower court in 2023 that the map violated Section 2 of the Voting Rights Act. Still, Justice Kavanaugh left the door open to a future challenge to Section 2, suggesting that the provision had lived too long.
Justice Neil Gorsuch similarly made up a legal argument out of thin air that could further gut the power of the Voting Rights Act to help minority voters. In a 2021 case, Brnovich v. Democratic National Committee, Justice Gorsuch wrote a separate opinion to suggest that the act might not allow private parties to bring suit—something that voters and organizations have done for over 50 years without anyone questioning the practice. Based on his statement, a Trump-appointed district court judge and then the Eighth Circuit Court of Appeals majority (with a Trump-appointed judge writing the opinion) ruled that only the Department of Justice, which has limited resources, may bring suit under Section 2 of the Voting Rights Act. If the Supreme Court agrees, states can pass even more restrictive election laws with even less judicial oversight.
Even when the Court issues an order that seems to help minority voters in the short term, the long-term implications are often harmful. In Lousiana, the Court allowed the state to use a map for 2024 that includes a second majority-Black district, but the Court’s order to put a lower court decision on hold indicated that it is likely to hear the case eventually, which will involve a broader constitutional attack on the Voting Rights Act.
The South Carolina racial gerrymandering case is part of this alarming pattern. The Court rejected the lower court’s factual findings, even though the Court usually defers to district courts on the facts. It did not outright overrule prior precedent, but the case will make it harder for plaintiffs to prove their case. The Court’s underlying message is to trust politicians to do the right thing.
There are solutions to fix the Court’s problematic approach to voting rights. Of course, the Court could return to its 1960s jurisprudence and protect voters, not politicians, but that is not likely to occur anytime soon. Instead, litigants have focused on state constitutions, which generally offer more robust voting rights than the federal constitution. There are also calls for Court reform, though having Democrats simply add justices is not a viable solution given that Republicans would pack the Court further when they are in power. Instead, we need systemic change on the Court, such as through 18-year term limits for Supreme Court justices or a random selection of lower court judges to sit on the High Court occasionally “by designation.”
The Court has engaged in judicial activism—to protect politicians and help them stay in office. Instead, it should elevate the individuals who are the lifeblood of a democracy: the voters.
Joshua A. Douglas is a law professor at the University of Kentucky J. David Rosenberg College of Law. He is the author of a new book, “The Court v. The Voters: The Troubling Story of How the Supreme Court Has Undermined Voting Rights.” He is also the host of the Democracy Optimist podcast. Find him at www.joshuaadouglas.com.
