How the Court Became a Voting-Rights Foe

For years, the conservative majority has worked to cement a system where entrenched leaders pick their voters in a bid to stay in power indefinitely.

Illustration of a gavel smashing through red lines
Getty; The Atlantic

About the author: Kimberly Wehle is a law professor at the University of Baltimore. She is the author of How to Think Like a Lawyer—And Why: A Common-Sense Guide to Everyday Dilemmas and What You Need to Know about Voting—And Why.

The Supreme Court’s recent decision, reversing that of a lower federal court, to reinstate Alabama’s evidently gerrymandered voting map did more than just make it harder for affected voters to have a meaningful say in the November midterms. To be sure, according to the lower court’s three-judge panel (which included two Trump appointees), the new map adversely impacts Black Alabamans in a way that violates the Voting Rights Act. The electoral stakes could hardly be higher, potentially determining whether control of Congress will shift to Republicans, leading to a cascade of implications, such as the termination of the United States House Select Committee on the January 6 Attack, efforts to impeach President Joe Biden, and possible election trickery—to say nothing of what would come of the normal business of legislating.

But beyond that, the frightening takeaway from Merrill v. Milligan is that a majority of America’s highest court again evinced a disdain for voters and their ability to pick their leaders, intent on cementing a system where this works in reverse, with the entrenched leaders picking their voters in a bid to stay in power indefinitely. By joining the dissent, even Chief Justice John Roberts—not exactly a historical champion of voting rights—seems to think the majority has gone too far, missing the most fundamental message of the U.S. Constitution: no more kings.

The Court needn’t have allowed this to happen. Gerrymandering is the practice by which every 10 years, state and local governments carve up and manipulate the geographical boundaries of an electoral district to maximize the power of one political party over the other. Two common techniques are “packing”—that is, drawing a district in a tortured way that smushes in voters of a certain party, making it all but impossible for others to choose a candidate from a competing party for that district. And “cracking”—taking a logical geographic boundary that happens to contain a predominant number of voters from a particular party, breaking it up into pieces, and adding those fragments to other districts dominated by the competing party so that those voters’ voices no longer matter.

With Section 2 of the Voting Rights Act of 1965, Congress drew a legislative line banning gerrymandering based on race and enabling lawsuits to enforce it. And in Shaw v. Reno, the Supreme Court in 1993 held that gerrymandered boundaries that cannot be explained on grounds other than race violate the Constitution’s equal-protection clause, declaring that “bizarrely shaped” districts strongly indicate racial intent. The Voting Rights Act, combined with the Court’s earlier constitutional interpretation, provided it with a solid foundation for protecting voting rights and strengthening American democracy. But that’s not what the Court’s new “conservative” majority has chosen to do with its power. Instead, it has made an abject constitutional power grab—the tragic outcome of a judicial assault on voting rights that dates back to when, over a trio of rulings, the Supreme Court unnecessarily struck at the very heart of American democracy, potentially fatally.

The slide away from voting-rights protection began in 2010, in the Court’s 5–4 decision in Citizens United v. Federal Election Commission, which held that legislative restrictions on “independent political spending” from corporations violate the First Amendment right to free speech. Meanwhile, donations directly to campaigns and their committees—something that individuals, but not corporations, can make—are capped. So, for individuals, donating more than $2,900 to a single candidate is illegal, on the rationale that a greater amount could corruptly sway an elected politician’s decision making once in public office. However, if an individual or a corporation buys a $1 million Super Bowl ad containing “electioneering communications,” the majority reasoned, that speech can’t be congressionally restricted, so long as the ad isn’t coordinated with the candidate. The trick is that only extremely wealthy individuals and corporations can do such a thing—leaving them with much more political power than average people. It’s a David-versus-Goliath problem caused not by Congress but by the Supreme Court, which all but obliterated the legislature’s gains in leveling the playing field on influencing elections through funding.

The Court ruled this way even though corporations are pure legal fictions, and even though Congress determined in legislation dating back more than 100 years that such spending might unduly influence candidates for office, and warrants regulation. It could easily have gone the other way, in accordance with its earlier precedents, as well as a commensurate respect for the U.S. Congress and the commonsense notion that ours is a democracy by the people, not corporations. To be sure, the Framers did not include an affirmative right to vote in the original Constitution, but corporate entities were nascent in 1791 when the First Amendment was ratified. For conservatives who bill themselves as textualists and originalists, it would have been easy to justify a ruling that the First Amendment’s free-speech protections were intended for individuals who work for corporations, but not for the legal creation of a corporate entity.

Three years later, in Shelby County v. Holder, the Court, in an opinion written by Chief Justice Roberts, again struck down a key portion of an act of Congress—this time, Section 5 of the Voting Rights Act. Section 5 was designed to push back on states’ outmaneuvering of the Fifteenth Amendment’s post–Civil War prohibition on laws restricting ballot access based on race. To keep Black voters from the polls, states enacted arbitrary hurdles to voting—such as reciting the Declaration of Independence or counting the bubbles in a bar of soap—as a precondition to ballot access. These schemes disproportionately impacted Black voters. Section 5 required states with unsavory histories of imposing such barriers to run proposed laws by the Justice Department before the laws could take effect.

The program was a legislative triumph, and Roberts himself wrote in Shelby County that “the Act has proved immensely successful at redressing racial discrimination and integrating the voting process.” Section 5 was reauthorized multiple times by substantial supermajorities in Congress. Nonetheless, the Supreme Court held that Section 5 was outdated and sent Congress back to the drawing board. Conceding that “voting discrimination still exists; no one doubts that,” Roberts wrote for the majority that “the conditions that originally justified these measures no longer characterize voting in the covered jurisdictions.” The formula for determining which states needed the DOJ’s approval to enact new voting laws—a process known as “preclearance”—was “based on decades-old data and eradicated practices,” Roberts reasoned, because minority-voter access had made great strides since 1965. The Court thus deemed the formula an unconstitutional infringement on states’ ability to regulate elections under the Tenth Amendment.

This was a sharp departure from prior precedent, as the Court had already rejected a similar constitutional challenge brought by Texas after Congress reauthorized the law in 2006. According to Justice Ruth Bader Ginsburg, that congressional determination was based on “exhaustive evidence-gathering and deliberative process.” Surely, the Court didn’t have to strike it down this time. Ginsburg famously quipped in dissent: “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.” The majority’s maneuver, she noted, was instead about the separation of powers: “who decides … this Court, or a Congress charged with the obligation to enforce the post-Civil War Amendments.”

The third nail in the voting-rights coffin came in 2019, with Rucho v. Common Cause. Although the Court had banned racial gerrymandering in Shaw v. Reno, in Rucho, Roberts wrote for a 5–4 conservative majority that constitutional claims of partisan gerrymandering are “political questions” that cannot be heard in court. The courthouse doors are thus permanently closed to claims that packing and cracking electoral districts for purposes of entrenching party power are unconstitutional. Voters must go back to gerrymandered politicians for help by asking that they give up the reins of power that gerrymandering provides them with and divide up districts more fairly.

Again, the Court needn’t have gone down this path. The political-question doctrine is notoriously squishy and untethered from the constitutional text, and the majority did not deny the broader constitutional implications with political gerrymandering. It just refused to hear them. Justice Elena Kagan bemoaned in dissent: “For the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities.” By 2019, Kagan was heavily outnumbered by five staunch conservatives who exercised their collective discretion to put a boot on the neck of voting rights, rather than championing them.

Voting-rights activists have grasped at other straws. The pending John Lewis Voting Rights Advancement Act, which has been languishing for months because of the threat of a Republican filibuster, was Congress’s answer to Shelby County. In addition to working via Congress, voters turned to Section 2 of the Voting Rights Act for relief through the courts in the interim. But that strategy, too, was met with the Court’s antipathy. In 2021, in Brnovich v. Democratic National Committee, Justice Samuel Alito wrote a 6–3 majority opinion (with Justice Amy Coney Barrett now on the Court) that effectively inserted a five-part legislative test into the Voting Rights Act as a prerequisite to voters seeking relief from laws inhibiting ballot access, making Section 2 lawsuits much harder.

By the time the Alabama case reached the Court this winter, voting-rights activists faced a panel with six far-right conservative justices—enough that they can lose Roberts to the Court’s moderate wing and still have the majority. And that’s just what happened.

Following the 2020 census, Alabama redrew its seven seats in the House of Representatives. Although its statewide population is 27 percent Black, only one of the newly drawn districts has a Black majority. All of the remaining six have a majority-white population. The lower court stayed the plan, giving the state legislature two weeks to draw another map that includes two majority-Black districts. Otherwise, the court said, it would hire an outside expert to do it.

In a single paragraph issued on a motion for a stay of the lower court’s order, the Supreme Court reversed that decision and issued an injunction effectively putting the contested plan back in place. The Court did this without the benefit of full briefing and argument—another invocation of its quick-and-dirty “shadow docket” procedure. (The Court declined to use this power to stay an unlawful ban on abortion in Texas, mind you.) In a concurring opinion, Justice Brett Kavanaugh emphasized that “the stay order is not a ruling on the merits, but instead simply stays the District Court’s injunction pending a ruling on the merits.” His partial rationale was that the lower court’s ruling was “in the period close to an election.”

Kavanaugh’s pretense that the injunction was only a technicality elevates form over substance. As with Texas’s S.B. 8 abortion law, the Court effectively left in place a potentially illegal law pending full briefing. Roberts again shot back: “I respectfully dissent from the stays granted in these cases because, in my view, the District Court properly applied existing law in an extensive opinion with no apparent errors for our correction.” Justice Kagan’s dissent, which Justices Stephen Breyer and Sonia Sotomayor joined, was sharper: “After considering a massive factual record, developed over seven days of testimony, and reviewing more than 1,000 pages of briefing, a three-judge District Court held that Alabama’s redistricting plan violated Section 2 of the Voting Rights Act.”

Roberts and Kagan underscored the ABCs of how the judicial system works. Unhappy litigants must wait patiently for their bid to come up on appeal. In the meantime, the lower-court rulings stand, absent some egregious immediate harm and a clear error of law.

So there we have it. Congress has in fact passed numerous laws to make elections fairer and ballot access easier. But based on its 1803 decision in Marbury v. Madison making it the arbiter of constitutional ambiguity, the Supreme Court has either slapped such legislation down or added material requirements to a statute to make bringing cases harder for voters. For a particularly problematic category of cases—political gerrymandering—the Court has barred all constitutional court actions and sided with states for statutory claims, regardless of the merits, on the theory that it’s better to err on the side of a potential Voting Rights Act violation because elections are around the corner (inevitably every year in some form or another).

This Court is going to continue to make voting more difficult, leaving it up to a Congress that was substantially voted in under those same unfair standards to fix the problem. Good luck with that. In the meantime, the revisionist justices are deep in the business of snatching power from a supposedly co-equal branch of government—one that, unlike the Court, is accountable to the voters at the ballot box. This is the sleeping dragon, friends. One-party rule will come to federal, state, and local legislatures across the country. But it is already here on the Supreme Court, in the form of four men and one woman in black robes, with jobs for life and nothing to slow them down other than individual conscience.