Day 3 of our Top 15 stories to watch in 2023 – SCOTUS

Welcome to the Wednesday, March 8, Brew. 

All week, we will be celebrating Ballotpedia’s 15th Anniversary by bringing you the top 15 political stories to keep an eye on this year.

Today, we tackle some of the most interesting U.S. Supreme Court cases in 2023.

Here’s what’s in store for you as you start your day:

  1. SCOTUS to decide if Alabama’s redistricting plan violates the Voting Rights Act 
  2. U.S. Supreme Court expected to issue opinion in Moore v. Harper by summer
  3. SCOTUS to decide legality of using race as a factor in higher education admissions decisions 

SCOTUS to decide if Alabama’s redistricting plan violates the Voting Rights Act 

Merrill v. Milligan concerns the Voting Rights Act and redistricting. The Court, which heard arguments in the case on Oct. 4, 2022, will decide whether Alabama’s 2021 redistricting plan for its seven congressional districts violates Section 2 of the Voting Rights Act of 1965.

The Voting Rights Act is a federal law that prohibits racial discrimination in voting. The act was passed in 1965 with the intent of enforcing the Fifteenth Amendment of the United States Constitution. Section 2 prohibits voting practices or procedures that discriminate on the basis of race.

The Court is expected to issue its ruling before the end of  June.

The plaintiffs are a group of Alabama voters and organizations who allege the congressional map that Gov. Kay Ivey (R) enacted on Nov. 4, 2021, unfairly distributed Black voters, diluting their votes. They asked the district court to order a new map with instructions to include a second majority-Black district. The lower court granted in part a motion for a preliminary injunction, temporarily preventing then-Secretary of State John Merrill (R) from conducting congressional elections in 2022.

A three-judge federal court sided with the plaintiffs, issuing a preliminary injunction on Jan. 24 stopping Merrill from conducting the state’s 2022 congressional elections using the 2021 redistricting plan. The ruling said: “Black Alabamians are sufficiently numerous to constitute a voting-age majority in a second congressional district,” and “Black voters have less opportunity than other Alabamians to elect candidates of their choice to Congress.” 

A representative for Alabama Attorney General Steve Marshall (R) wrote that “the Attorney General’s Office strongly disagrees with the court’s decision and will be appealing in the coming days.”

On Feb. 7, 2022, the Supreme Court voted 5-4 to block the injunction, with Justices Alito, Barrett, Gorsuch, Kavanaugh and Thomas in the majority and Chief Justice Roberts and Justices Breyer, Kagan, and Sotomayor in the minority. This allowed the 2022 congressional elections to proceed using the lines approved in 2021. The Court’s majority did not post a full opinion in the case.

As of March 7, the Court has agreed to hear 64 cases this term. One case was dismissed. 

Click below to read more about Merrill v. Milligan

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U.S. Supreme Court expected to issue opinion in Moore v. Harper by summer

Let’s turn to another case before the Court that came out of the redistricting process. In this case, North Carolina’s redistricting process. 

Moore v. Harper concerns the elections clause in Article I, section 4, of the Constitution and whether state legislatures alone can regulate federal elections without oversight from state courts. The Republican-controlled North Carolina General Assembly adopted new congressional district boundaries in 2021, which Democratic Party-affiliated voters and nonprofit organizations subsequently challenged in court. SCOTUS eventually agreed to hear the case. You can read more about the case’s timeline here

Depending on how the Court rules, the power and authority to regulate federal elections could become more concentrated in state legislatures and with the federal judiciary in the event of appellate review.

At issue is the independent state legislature theory or doctrine (ISL), which states that the U.S. Constitution gives state legislatures the authority to regulate federal elections. According to the theory, checks on state legislatures’ power to regulate federal elections come from federal courts and the U.S. Congress. State constitutions, state judges, and state executives cannot intervene to change federal election rules that state legislatures have established.

After SCOTUS agreed to hear Moore v. Harper, Carrie Campbell Severino wrote in National Review that “The alarmism around Moore v. Harper comes from liberals who cherry-pick their grievances in states whose constituents favor Republicans and selectively use liberal activist state courts to give Democrats advantages they cannot get democratically.” Richard Hasen wrote in Slate that “This case has the potential to fundamentally rework the relationship between state legislatures and state courts in protecting voting rights in federal elections. It also could provide the path for election subversion in congressional and presidential elections.”

Here’s a look at how legal scholars have approached the ISL theory: 

  • Florida State University College of Law professor Michael Morley, a proponent of ISL, wrote, “The U.S. Constitution grants authority to both regulate congressional elections and determine the manner in which a state chooses its presidential electors specifically to the legislature of each state, rather than to the state as an entity.”
  • Vikram David Amar, a University of Illinois law professor, and Akhil Reed Amar, a Yale University law professor, who oppose ISL, wrote, “The theory invokes constitutional provisions designed to protect states against federal interference (including interference from federal courts) and instead uses these provisions to disrespect both the wishes of the state peoples who create, empower, and limit their legislatures, and the wishes of the elected legislatures themselves.”

The ISL theory first appeared in 19th century case law. Chief Justice William Rehnquist—joined by Justices Antonin Scalia and Clarence Thomas—cited it in his concurring opinion in Bush v. Gore (2000). Rhenquist said the state courts acted outside their constitutional authority when ordering a recount in the election because the recount conflicted with the election deadlines the state legislature established. Since then, four current Supreme Court justices have cited the doctrine in opinions in cases asking federal courts to prevent states from changing election dates and procedures in response to the COVID-19 pandemic.

On March 2, the U.S. Supreme Court directed all parties in Moore v. Harper to file supplemental briefs by March 20 regarding SCOTUS’ jurisdiction in light of the North Carolina Supreme Court’s decision on Feb. 3 to rehear the case. Amy Howe at SCOTUSBlog wrote that SCOTUS’ order asking for the briefs “raised questions about whether it would reach a decision in” Moore v. Harper.

Learn more about the case at the link below.

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SCOTUS to decide legality of using race as a factor in higher education admissions decisions  

Finally, let’s turn to the last case we’re looking at today.

Students for Fair Admissions, Inc. v. President & Fellows of Harvard concerns whether institutions of higher education can use race as a factor in admissions. The case was argued before the Supreme Court on Oct. 31, 2022. A decision is expected by June.

Students for Fair Admissions, Inc. (SFFA), the plaintiff, alleged that race-conscious admissions violated Title VI of the Civil Rights Act of 1964 and the Equal Protection Clause of the 14th Amendment. The plaintiff alleges that Harvard is violating the Equal Protection Clause as a public university and Title VI by penalizing Asian-American applicants, engaging in racial balancing, overemphasizing race, and rejecting workable race-neutral alternatives.

In 2003, the Supreme Court found in its Grutter v. Bollinger decision that the University of Michigan Law School’s admissions program did not violate the 14th Amendment or Title VI. The court upheld the use of such race-conscious programs so long as the use of race is “narrowly tailored to further compelling government interests.” The court said a narrowly tailored program must be flexible and non-mechanical, and it cannot use a quota system. It must also make a good faith consideration of race-neutral alternatives. The program also can’t “unduly burden individuals who are not members of the favored racial and ethnic groups,” and the program must be limited in duration.

In Students for Fair Admissions, Inc. v. President & Fellows of Harvard, SFFA appealed to the Supreme Court on Feb. 25, 2021, after the U.S. Court of Appeals for the 1st Circuit affirmed the decision of the U.S. District Court for the District of Massachusetts that found Harvard’s admissions program did not violate Title VI.

U.S. Rep. Michelle Steel (R) joined 81 other members of Congress in filing a brief urging the Court to rule in favor of the plaintiffs and to overturn the Grutter decision. Steel wrote, “Discrimination of any kind has no place in our country, and that includes discrimination in the halls of our schools and universities. I’ve worked for decades to bring fairness to our education system because students deserve to be judged on their hard work and commitment to learning, not by their race.”

U.S. Rep. Bobby Scott (D) joined 64 other members of Congress in filing a brief urging the Court to rule in favor of Harvard’s defense and to uphold the Grutter decision. Scott wrote, “Narrowly tailored admissions policies that recognize race as one criterion — out of many criteria for evaluating prospective students — are a key tool to realize diverse learning environments and address continued educational inequity.”

Learn more about the case at the link below. 

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