After years of limiting voting rights, the US supreme court issued two surprising rulings in voting rights cases this term, both of which are likely to have significant consequences for the 2024 presidential race.
The court’s 5-4 decision in Allen v Milligan earlier this month, upholding section 2 of the Voting Rights Act, is likely to lead to more majority-Black, Democratic-leaning districts in the US House. The 6-3 ruling in Moore v Harper, rejecting the most extreme version of the independent state legislature theory (ISLT), makes it even more difficult for a rogue state legislature to try to override the popular vote and appoint its own electors.
After a redistricting cycle that blunted the power of minority voters, and with the tumult of the 2020 election in recent memory, both cases could bolster democratic protections, though there’s likely to be further court battles.
The addition of several Democratic-leaning districts in the US House would be tremendously advantageous to Democrats ahead of 2024, since Republicans hold only a narrow majority in that chamber. Alabama, the state where districts were challenged in the Milligan case, is already beginning the process of adding a second majority-Black district. Louisiana, where there is a similar case pending, may soon have to do the same. There also could be an additional majority-Black district in Georgia and an additional majority-Hispanic district in Texas, said Richard Pildes, an election law professor at New York University.
“It might be now that this will open the door to more litigation over state legislative maps and there might be changes required because of section 2 for some state legislatures,” he said.
In Moore, the court rejected the idea that state legislatures can make rules for federal elections that are not subject to state constitutions and reviewable by state courts. While the case didn’t directly address the appointment of presidential electors, it narrows the possibilities for a legislature seeking to overturn the election results.
After the 2020 election, Donald Trump and his allies embraced a fringe idea that state legislatures could override the popular vote and appoint their own electors after election day. That kind of post-election day change was always unconstitutional, said Carolyn Shapiro, a professor at the Chicago-Kent College of Law who has written extensively about the ISLT.
“Even before Moore v Harper, it was clear that a state legislature could not decide after an election that it did not like or agree with the popular vote for president and so was going to appoint its own electors,” she said. “But if Moore had come out the other way, it would allow state legislatures to do things that would otherwise violate state constitutions to put themselves in the position of effectively choosing electors.”
A state legislature could try to pass a measure before an election, for example, that made it the arbiter of the outcome in the event of a dispute, Shapiro said. The Moore decision doesn’t stop a state from doing that, she said, but it ensures that any attempt to do so would be constrained by state constitutions and state courts.
John Eastman, the California lawyer who was instrumental in shaping Trump’s effort to overturn the election, told NBC News the Moore decision made his theory “murkier”. Eastman, who filed a brief urging the supreme court to embrace the ISLT, is facing disciplinary proceedings before the California bar over his involvement in efforts to overturn the 2020 election.
A coup in 2024 is also more unlikely because Congress last year updated the Electoral Count Act, the 1887 law that determines how Congress counts votes from the electoral college. The updated measure clarifies that the vice-president’s role in presiding over the counting is ministerial (Trump and allies had argued that then vice-president Mike Pence could unilaterally stop counting in 2020) and sets a higher bar for an objection to the counting to be heard.
While the Moore decision was hailed as a major victory for voting rights advocates, it has some ambiguity that is likely to lead to continued high-stakes litigation over election rules. While state legislatures can be checked by state courts, the majority of justices wrote, there are some instances in which state courts can go too far in interpreting election rules. But the supreme court did not explain how to determine if a state court went too far.
“We know that disappointed candidates and political parties are going to take advantage of this opening to the extent they can, and it means we’re going to have some degree of uncertainty about this doctrine in the 2024 elections when the courts may be in the position of actually having to decide these issues when it’s clear whose ox is going to be gored, which candidate is going to be better or worse off from their decision,” Pildes said.
In 2020, there was a flood of election-related litigation in state courts as litigants sought emergency action to change election rules during the Covid-19 pandemic. That race enraged Republicans, whom Democrats accused of using their control of state supreme courts in places like Pennsylvania and North Carolina to their advantage (Democrats have since taken control of the Pennsylvania legislature, and Republicans are the majority on the North Carolina supreme court).
One place where there could be a high-stakes clash in 2024 is Wisconsin, one of the most politically competitive states in the US. Democrats will officially take control of the state supreme court in August, giving them a strong opportunity to challenge voting restrictions the GOP-controlled legislature has passed there. A clash between the newly Democratic state supreme court and the Republican legislature could come before the US supreme court.
Other observers also predicted there would be litigation in 2024 testing the boundaries of the supreme court’s ruling, but said the court had set a high bar for intervening. The supreme court is going to want to draw a firm line so that it doesn’t constantly get involved in election disputes, said Cameron Kistler, a lawyer with Protect Democracy, a voting rights group.
“We will see cases, but I think almost certainly, unless something really screwy happens, they’re gonna lose a lot,” he said. “Examples of successful challenges will be few and far between, if any.”
