What is the Supreme Court’s understanding of our democracy?
When the current Supreme Court justices who were appointed by Republican presidents (six of the nine-member court) try to justify the elimination of long-standing fundamental constitutional rights, or regulations to protect our environment, they are fond of referring to the importance of “the people” having a say through their “elected representatives.”
For example, on June 24, Justice Samuel Alito proclaimed on behalf of Justices Amy Coney Barrett, Neil Gorsuch, Brett Kavanaugh and Clarence Thomas in Dobbs that it is time to “return the issue of abortion to the people’s elected representatives.” On June 30, Gorsuch informed us in West Virginia v. EPA that the Environmental Protection Agency’s (EPA) Clean Power Plan for reducing carbon dioxide emissions must be overturned because “none of us wishes to abandon our Republic’s promise that the people and their representatives should have a meaningful say in the laws that govern them.”
These statements beg the question of which “people” and whose “representatives” should make these determinations.
On Wednesday, the court will hear argument on an issue that goes to the heart of that question (and our democracy) in Moore v. Harper. North Carolina’s Supreme Court ruled that a congressional redistricting plan adopted by its Republican legislature is “unconstitutional beyond a reasonable doubt” because it violated the “fundamental right” of all North Carolina citizens “to substantially equal voting power.” The plan “substantially diminished the voting power of voters affiliated with one party on the basis of partisanship.” If Republicans received 50 percent of the vote they would win 10 of the state’s 14 congressional seats.
The Republican Speaker of the North Carolina House of Representatives and other state legislators appealed to the U.S. Supreme Court. They argue their redistricting plan should be reinstated, and the North Carolina ruling should be overturned on the grounds that it violates the portion of the Elections Clause of the U.S. constitution that states, “The times, places and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature.” The legislators say this means the legislature’s congressional districting plan and other determinations concerning congressional elections are binding and unreviewable by North Carolina state courts even if they blatantly violate the state constitution by preventing Democrats from electing their fair share of representatives.
That argument is untenable. The Elections Clause does not suspend judicial review or the rights granted by state constitutions. And it would be impossible to argue with a straight face that the legislators’ position is not antithetical to our democracy. It would enable a legislature controlled by one party to gerrymander the state’s congressional delegation.
The harm would not be confined to citizens of that state. In a close election for the U.S. House of Representatives, like the one this year, gerrymandering in just one or a few states can enable a party to win control of the House itself and therefore affect everyone in all of the other states.
If the Supreme Court’s words in Dobbs and West Virginia about “the people” having “a meaningful say in the laws that govern them” are not empty rhetoric, one might assume we can count on the justices who wrote them to reject the North Carolina legislators’ arguments and instead protect our right to fair elections, with no state legislature having an inappropriate partisan thumb on the scale. If that is your assumption, please think again.
Three of the Republican-appointed justices — Thomas, Alito and Gorsuch — have already indicated that they support the North Carolina legislators’ theory. Kavanaugh said it presents “serious arguments.” And in the last 15 years, in one area after another, the Republican-appointed justices have declined to adopt, or simply eliminated, fundamental protections of our democracy. Three examples tell the story:
1) In 2018, Republican-appointed justices acknowledged in Rucho v. Common Cause that “excessive partisanship in districting leads to results that reasonably seem unjust” and is “incompatible with democratic principles.” But they ruled, over the dissent of the other four justices, that they do not have the authority to stop legislators from gerrymandering.
2) Some states have historically used poll taxes, literacy tests, residency requirements, purges of voter lists and other devices to reduce the number of votes cast by minorities, the poor and others. The 1965 Voting Rights Act abolished some of these barriers and sought to ensure that minority voters were fairly represented. But in 2013, a 5-to-4 majority comprised of the Republican-appointed justices at the time, ruled in Shelby County v. Holder,that the act’s requirement that certain states obtain preclearance of restrictive voting measures by the federal court in Washington D.C. or the U.S. attorney general no longer applies. This year the court declined to enforce the act in the recent congressional midterm elections and is considering a further narrowing of the act’s protections.
3) In 2002, Congress enacted the Bipartisan Campaign Reform Act to ban “soft money” contributions that are detrimental to our democratic self-government because they open the door to the pernicious effects of big money in politics. The Supreme Court upheld this legislation as constitutional. But in 2010, in Citizens United, the five Republican-appointed justices overruled that decision, over the dissent of the other four justices, and struck down important aspects of the law that limit the enormous political contributions that distort our democratic processes today.
If these Supreme Court justices mean what they say about the importance of “our Republic’s promise that the people and their representatives should have a meaningful say in the laws that govern them,” it is time to reverse course, deny the North Carolina legislators’ appeal, and focus on the protection of our democracy.
Michael J. Dell is a New York lawyer who litigates and writes about constitutional issues.