“The court didn’t make it any easier to win voting rights cases,” redistricting expert Justin Levitt told Bolts at the time. “It just declined to make it much, much, much, much, much, much harder.”

But the reprieve may have been temporary, and winning voting rights cases may still get much harder this year. A series of cases are working their way through federal courts that represent grave threats to Section 2 of the VRA, which prohibits denying the right to vote “on account or race or color,” language that extends into protection against racial gerrymandering. 

In these cases, conservatives are trying out a suite of new legal arguments, each of which would dramatically narrow the scope of the VRA. The cases are still making their way through district and appellate courts, with some early rulings favoring conservatives, at times authored by judges nominated by Donald Trump. Many are expected to end up at the Supreme Court, where members of the conservative majority have already expressed skepticism at various aspects of the VRA. 

Judges will decide if critical protections afforded by Section 2 of the VRA remain applicable to the present, whether the law applies to statewide races and coalition districts, and even whether voting rights groups can ever bring a lawsuit under Section 2—a sleeper case that already detonated in an appeals court last fall. The most acute stakes concern the rules of redistricting, with officials in GOP-run states including Alabama, Arkansas, Louisiana, North Dakota, and Texas proposing new interpretations that would fuel gerrymandering and undercut the voting power of communities of color. 

Here is your roadmap to four major legal threats that may further unravel the VRA in 2024, and what cases you should be watching.

1. What if private plaintiffs can no longer sue?

What is the threat to the VRA?

For decades, ordinary citizens and voting-rights organizations have brought lawsuits alleging VRA violations. These lawsuits, and the mountain of legal work and research that goes into them, have been critical to getting courts to strike down discriminatory legislation and create districts that allow communities of color to be represented by candidates of their choice.

In what’s undoubtedly the biggest threat facing the VRA, federal courts might invalidate that entire approach. Conservatives have made the case that only the U.S. Attorney General has the power to sue over violations of Section 2 of the VRA, and they landed a startling ruling by a district court judge last year. If the ruling stands, it would ban private parties from bringing these lawsuits, massively shrinking enforcement; when the Department of Justice is controlled by politicians hostile to civil rights, it may eliminate these VRA lawsuits altogether. 

What are the cases to watch?

Keep an eye on Arkansas State Conference NAACP v. Arkansas Board of Apportionment, the challenge to Arkansas’s state legislative districts. 

After Arkansas Republicans drew new legislative maps in 2021, the state NAACP sued in federal court, arguing that Black Arkansans were underrepresented, and that this violated Section 2 of the VRA. But the district court judge who heard the case, Trump-appointee Lee Rudofsky, questioned whether the NAACP was even allowed to bring suit at all. 

It’s been a long-established practice for private parties to sue over Section 2 allegations. But Justices Neil Gorsuch and Clarence Thomas encouraged that question to be revisited in a 2021 concurrence, stating that courts have “assumed” that this is appropriate without ever deciding it. Walking into that breach, with an explicit appeal to Gorsuch, Rudofsky ended up dismissing the suit with a bombshell finding: “Only the Attorney General of the United States can bring a case like this one.” 

In November, a three-judge panel on the Eighth Circuit, one of the most conservative appellate courts in the country, affirmed that ruling in a decision authored by Eighth Circuit Judge David Stras.

If the ruling holds—the NAACP has asked the full Eighth Circuit to reconsider the decision, and an appeal to the U.S. Supreme Court is likely regardless—it would be sure to sideline a great many VRA cases. Besides the Arkansas litigation, high-profile cases last year that led to new maps in Alabama and Louisiana were brought by private plaintiffs, and would have been dismissed outright under Stras’ ruling.

The GOP has rushed to defend the holding and use it in other contexts. In December, the Republican attorneys general of twelve states (including Idaho’s Raul Labrador, Kansas’ Kris Kobach, and Texas’ Ken Paxton, all prominent far-right figures) signed on to an amicus brief asking the Fifth Circuit to take on the Eighth Circuit’s interpretation and rule against voting rights groups in the ongoing litigation around Alabama’s congressional map.

And in North Dakota, a state that falls within the Eighth Circuit, the Turtle Mountain Band of Chippewa Indians and the Spirit Lake Tribe successfully challenged legislative districts in 2023 for diminishing the voting power of Native voters. State officials have agreed to use a replacement map for the 2024 election but have appealed the use of the map beyond that point. And in pushing back against the ruling last month, North Dakota’s Republican Secretary of State, Michael Howe, has already invoked the same argument that private parties cannot bring suits under Section 2 of the VRA, an argument that would outright silence the legal power of the two tribes that challenged the state.

2. The conservative case that times have changed

What is the threat to the VRA?

When the Supreme Court in 2013 struck down Section 5 of the VRA, which required certain jurisdictions to seek D.O.J. approval before changing their voting procedures, Chief Justice John Roberts wrote that “things have changed dramatically” in the South since 1965.

Some conservatives want federal courts to go even further, and dramatically re-interpret Section 2 on that same basis. And Justice Brett Kavanaugh last year gave them a reason to keep trying, doing so in the very same Alabama case in which he sided with the liberal justices to otherwise save the VRA. He noted that Justice Clarence Thomas’s dissenting opinion in the case argued that “the authority to conduct race-based redistricting cannot extend indefinitely into the future.” But Kavanaugh wrote that “Alabama did not raise that temporal argument in this Court, and I therefore would not consider it at this time.” The time may now be coming that’ll test Kavanaugh: Despite the massive barriers that people of color continue to face in exercising the franchise, multiple cases are working their way through the legal system in which defendants are renewing the argument that “things have changed” too much to keep enforcing Section 2.

What are the cases to watch?

Keep an eye on Milligan v. Allen, the continued litigation over Alabama’s congressional map, and Robinson v. Landry, the challenge to Louisiana’s congressional map 

Alabama this year will vote under a new congressional map that a federal court drew in late 2023 to create an additional district likely to elect a Black candidate. State officials have objected to the new map, and in so doing they’ve picked up on Kavanaugh’s argument: Alabama is asking courts to decide whether “the authority to conduct race-based redistricting extends to the present day,” regardless of its original justification. 

Louisiana officials have made a similar claim in their effort to fight court rulings that have struck down the state’s congressional maps as violating the VRA. (Louisiana adopted a new map creating a new majority-Black district this month due to a court-ordered deadline, but the litigation over that order continues.) 

Alabama has called the litigation against its original map “affirmative action in redistricting.” In 2023, the U.S. Supreme Court in 2023 struck down affirmative action in university admissions, and even though that case did not touch on voting rights, GOP officials in several states have weaponized the case to argue that the VRA is no longer applicable to the present.

In July, Louisiana officials filed a brief arguing that the affirmative action decision shows that “statutes requiring race-based classification” will “necessarily become obsolete.” They ask courts to settle “whether the facts on the ground here similarly warrant a rejection of Section 2 of the VRA, as applied, because it is no longer necessary.”

If the Fifth Circuit and the Supreme Court take the bait and say the established interpretation of Section 2 as no longer permissible, it would greatly narrow the legal space for racial discrimination claims.

It would amount to a judicial carte blanche for states to double down on discriminatory practices, except now shielded by the argument that the country is too enlightened to allow such practices.

3. Courts may shut the door to sue over statewide elections

What is the threat to the VRA?

Legal challenges often focus on how politicians have drawn districts: Have they respected the VRA in how they’ve separated or combined a state’s communities? But civil rights litigants have also contested the use of “at-large” elections, which are elections that elect the members of a body (say, a city council) throughout the jurisdiction, without the use of districts. Using this “at-large” structure for local races can prevent minority groups from electing a candidate of their choice; in some contexts, lawsuits have successfully forced counties and cities to convert their electoral system to use districts, allowing different communities to be better represented.

A case that’s percolating through the federal court system may decide whether similar lawsuits can ever be brought in the context of statewide elections. If that door is shut, it would put many government bodies whose members are elected at-large—most commonly, public utility commissions, boards of university regents, or boards of education—beyond the reach of VRA litigation.

What is the case to watch?

Keep an eye on Rose v. Raffensperger, the challenge to Georgia’s public service commission elections. 

In 2020, several Georgia voters sued over the use of statewide (“at-large”) elections for the five members of the state’s Public Service Commission, the body that regulates public utilities. They argued that a compact, Black-majority district could be created to elect a member of the Commission; a district court agreed after a trial, and ordered the state legislature to draw districts to that effect. But the state’s decision to appeal dragged out the process, leading to canceled elections. And in November, in a ruling authored by Judge Elizabeth Branch, another Trump appointee, a three-judge panel on the Eleventh Circuit reversed that decision. The panel held that the plaintiffs had not made out a sufficient claim under the VRA because their proposed remedy would “upset Georgia’s policy interests,” specifically, its “interest in maintaining its form of government.” In other words, because the Georgia legislature decided to make the Public Service Commission elected statewide, the court was obligated to respect that decision.

The ultimate resolution of this case will shape the viability of a lot of prospective litigation. This is believed to be the first case challenging the use of a statewide electoral system, so the district court’s decision had opened the door to similar challenges popping up elsewhere. If lawsuits like this can be brought against the use of statewide elections to pick members of state boards, voters may be able to target other elected state institutions whose “at large” membership is largely or all-white—Alabama’s Public Service Commission and Texas’s Railroad Commission come to mind—with the demand that they replace statewide elections with a system that providing communities of color a better opportunity to elect a member. 

If these challenges can’t be brought, however, communities of color may keep being systematically shut out with impunity.

4. The use of “coalition districts” is under threat

What is the threat to the VRA?

The VRA may compel states or localities to create districts that give voters in a racial group the opportunity to elect a candidate of their choice. In deciding whether such a district is required, federal courts assess whether a specific group’s size and voting behavior warrant such an opportunity district. But what happens when no single racial group is large enough to reach that threshold, but several do so when combined? 

In that context, some federal courts have required the creation of “coalition” districts, a practice that has boosted representation for people of color. For instance, they may consider Black and Latinx residents together to force the creation of a district in which voters would have a better shot at electing a nonwhite candidate. A case out of Texas is now threatening this practice, however. 

What are the cases to watch?

Keep an eye on Petteway v. Galveston County, the challenge to county commission districts in Galveston County, Texas. 

Following the 2020 census, Galveston County commissioners drew a new set of districts for their county commission; their map eliminated the county’s only “majority-minority” district—a coalition district in which Black and Latino voters make up a majority. Backed by conservative legal groups, the county argued during a trial last year that the VRA should not be used to protect multiracial coalitions; but a federal court sided with plaintiffs in restoring the district. Judge Jeffrey Brown, who was nominated by Trump, even wrote that the “circumstances and effect of the enacted plan were mean-spirited and egregious.”

But the conservative Fifth Circuit chose to suspend the decision until it could decide the county’s appeal, and the U.S. Supreme Court blessed that move in December over the objections of liberal justices. The appeals court made clear that it wanted to revisit its past decisions that have endorsed the use of coalition districts.

The case may hand conservative justices another shot at upending the redistricting norms, if they choose to weigh in for the first time on the permissibility of coalition districts. If coalition districts are no longer used as a remedy to racial discrimination, it may further cut the number of districts drawn to elect people of color; in racially diverse regions like Texas, it would make it harder to challenge maps that are resulting in a disproportionate number of white officials.

Some of these questions are playing out in Georgia. A federal court last year struck down the state’s congressional map, ordering an additional Black opportunity district. The legislature responded by carving up an existing coalition district and turning it into a Black majority district. The challengers have argued, unsuccessfully so far, that this is impermissible: that fixing a VRA violation cannot involve eliminating an existing coalition district.

The post Your Guide to Four Emerging Threats to the Voting Rights Act appeared first on Bolts.

Conservative justices on the U.S. Supreme Court ruled in 2019 that federal judges could not entertain complaints of partisan gerrymandering. In its landmark 5-4 decision Rucho v. Common Cause, the court said that it’s not for federal courts to decide whether an election map is designed to give one party an illegal advantage. But Chief Justice John Roberts assured plaintiffs that his decision does not leave them powerless to stop partisan gerrymandering since they still have a path for litigation: state courts.

The Rucho decision did not “condemn complaints about districting to echo into a void,” Roberts wrote, since states “are actively addressing the issue on a number of fronts.” 

New Hampshire last week became the latest state to show the promise was largely illusory. 

Its state supreme court ruled that it couldn’t consider whether the state’s election maps are illegal partisan gerrymanders because that’s not something that state judges should be deciding either. The 3-2 decision—with the three judges appointed by Republican Governor Chris Sununu in the majority—left in place the GOP gerrymanders signed into law by Sununu. This likely locks the party’s structural advantages in New Hampshire’s Senate and executive council through the 2030s. 

And it condemns complaints of partisan gerrymandering claims to echo into a void after all, with nowhere to turn in either federal court or New Hampshire court. 

The court said plaintiffs could address their grievances by getting state lawmakers to pass redistricting reform. But the odds of such a reform are low since the New Hampshire legislature is already gerrymandered, a circular dynamic that explains why voting groups tried to turn to federal and state courts on the issue. Any bill would have to be approved by the state Senate, a body whose districts have long been drawn to give Republicans an edge.

The New Hampshire decision adds to a trend in the nation since Rucho, with other state courts retreating from Roberts’ assurance and showing that they can just as easily refuse to answer the same questions. Earlier this year, for example, North Carolina’s supreme court ruled that partisan gerrymandering lawsuits can’t be brought under the state constitution, reversing past decisions to the contrary and paving the way for maps meant to maximize the GOP’s power.

New Hampshire Republicans won complete control of state government in 2020. They then proceeded to cement their advantage after the decennial census, adopting districts for the state Senate and executive council that created more Republican-leaning seats. A group of voters challenged the maps in court, alleging that they were partisan gerrymanders that violated New Hampshire’s constitution. 

But New Hampshire’s supreme court upheld the maps’ constitutionality on Nov. 29. The court declined to even consider the merits of the challenge, holding instead that partisan gerrymandering is a policy matter for other institutions to debate, and is a non-justiciable political question.

In practice, this means that no case alleging partisan gerrymandering, regardless of how egregious, can be brought in state courts. 

The New Hampshire court argued that there is no consistent method through which state judges could adjudicate such cases: no “discernible and manageable standards for adjudicating partisan-gerrymandering claims.” The language mirrors the U.S. Supreme Court’s decision in Rucho on how federal courts should approach partisan gerrymandering claims: Roberts argued in that case that adjudicating such claims is overly subjective. “There are no legal standards discernible in the Constitution for making such judgments, let alone limited and precise standards that are clear, manageable, and politically neutral,” the chief justice wrote.

The New Hampshire court’s decision flips an important part of the rationale in Rucho on its head. Roberts’ opinion also doubled as an ode to federalism; even as he sidelined federal courts, he invited states to look to their own laws and constitutions for alternative protections against partisan gerrymandering that don’t rely on the U.S. constitution. Writing in 2019, he offered as an example a 2015 decision  by Florida’s supreme court striking down a congressional map as an illegal gerrymander under the state constitution. 

Plaintiffs in New Hampshire asked state courts to similarly consider their own constitution. But in closing the door on their challenge, the state supreme court heavily relied on Rucho—calling it “directly on point” even though Rucho was interpreting the U.S. Constitution—and it drew extensively from Roberts’ opinion, even as Roberts invited states to chart their own path. 

“Provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply,” Roberts wrote in Rucho, but that approach can’t get out of the starting blocks if a state court then turns to Rucho to decide how to interpret its state constitution.

Florida’s constitution, unlike New Hampshire’s, contains a clause that expressly restricts partisan gerrymandering. But even in states without such an express prohibition, some courts have found implied protections against partisan gerrymandering. In the last several years alone, courts in Alaska, Maryland, New Mexico, North Carolina, and Pennsylvania have all affirmed such protections. 

In their arguments to the New Hampshire supreme court, plaintiffs pointed to these decisions. They argued that the guarantee of “free” elections in New Hampshire’s constitution (which does not exist in the U.S. Constitution), along with other free-expression rights, established a right of voters to elect representatives on equal footing with each other. 

The court found this unpersuasive. It reiterated that developing and consistently applying standards for reviewing partisan gerrymandering isn’t possible in practice. As a “telling” sign of this inconsistency, the New Hampshire justices pointed to recent events in North Carolina, where the state supreme court struck down GOP gerrymanders in 2022 before reversing itself this year. 

But North Carolina’s court didn’t just change the standards for deciding whether maps are unconstitutional, or apply old standards differently. It simply ruled that this is not a question that judges can rationally decide, in language very similar to the New Hampshire decision. 

“There is no judicially manageable standard by which to adjudicate partisan gerrymandering claims,” North Carolina Chief Justice Paul Newby, a Republican, wrote in February. “Courts are not intended to meddle in policy matters.”

New Mexico’s supreme court offered the opposite answer this year when it confronted a similar question.

It ruled that state courts can entertain claims of partisan gerrymandering, and decide whether a map is unduly giving an advantage to a party. To get around the concern that there’s no criteria judges could manage, the court identified a set of standards with which to analyze maps. It adopted a three-part test laid out by U.S. Supreme Court Justice Elena Kagan in her dissent in the Rucho case; Kagan proposed that courts could strike down a map if they have proof that its creators’ purpose was to “entrench their party in power;” that it has had “the intended effect”; and, if so, that mapmakers cannot provide a “legitimate, non-partisan justification” for the map. 

The same court in November then upheld New Mexico’s congressional map, which delivered Democrats an additional seat in 2022, ruling on the merits that it did not violate Kagan’s test. 

The decision is a reminder that a state court’s decision to hear partisan gerrymandering claims does not mean they’ll automatically strike down a map. And when such cases come up, there’s no telling how left-leaning and right-leaning justices may rule, depending on who has drawn maps; in New York State last year, it was the conservative-leaning judges who struck down gerrymanders drawn by Democrats over the objections of more liberal judges.

But these decisions also underscore the widening contrast between courts on the first-order question of whether they’ll even entertain such claims: on whether partisan gerrymandering is a judiciable question. 

Conservative jurists have been more likely to rule that it is not. The North Carolina reversal came after the court flipped from 4–3 Democratic to 5–2 Republican last year. The Rucho decision was a similarly narrow 5-4 win for the court’s then-five conservative justices. 

And in New Hampshire, the decision to reject the partisan gerrymandering claims came down to a 3–2 vote, with the 3 justices nominated by a Republican governor in the majority, and the two nominated by Democratic governor dissenting. 

One of the justices in the majority was Chief Justice Gordon MacDonald, whose nomination by Sununu was initially rejected by the executive council when it was under Democratic control. MacDonald was then confirmed to his seat when the council flipped to the GOP in 2020.

One of the Democratic-nominated justices who dissented in this case, Gary Hicks, left the court the day after the court issued its decision because he hit the mandatory retirement age. Sununu has nominated Melissa Beth Countway, a local judge, to replace him. 

Even Florida has come a long way since Roberts mentioned its supreme court: The mere threat that its new conservative justices may now shrug off partisan gerrymandering complaints has made the state’s existing protections virtually toothless. 

After voters amended their state constitution in 2010 to add provisions against partisan gerrymandering, Florida’s supreme court used those provisions to strike down state maps in 2015 for being “tainted” by partisanship. But by the time Republicans adopted a new set of aggressively gerrymandered maps masterminded by Governor Ron DeSantis in 2022, Florida’s judicial landscape was very different: The supreme court’s liberal majority had been wiped out, replaced by hard-right justices appointed by DeSantis. 

While plaintiffs initially filed a lawsuit challenging the state’s new congressional districts as partisan and racial gerrymanders, they later dropped all of their partisan gerrymandering claims, perhaps out of a concern that the Florida supreme court would be unwilling to meaningfully enforce the anti-gerrymandering provisions in the constitution.

Looming over all of this is the threat that the U.S. Supreme Court could step in against a state supreme court that actually does strike down a state map as a partisan gerrymander.

In its June decision in Moore v Harper, the court rejected the so-called independent state legislature doctrine, which argued that congressional maps drawn by legislatures (as well as other state statutes regulating federal elections) should not be subject to any review by state courts. But the decision, which was authored by Roberts, again, still kept open the possibility that it may intervene if state courts “transgress the ordinary bounds of judicial review.” 

State courts trying to stop partisan gerrymandering may feel some trepidation about stepping over this ambiguous  line. After all, here was the same justice who told them in Rucho to look at their own state constitutions and statutes, now warning them in Moore that he may stop them even if they ground their rulings on state law. Roberts hollowed out his own promise, restricting with one hand what he had invited with the other.

The post Yet Another State Shuts the Door on Partisan Gerrymandering Complaints appeared first on Bolts.

Workman sat on West Virginia’s supreme court in 2018—one of the three Democratic justices in the court’s majority—when Republican lawmakers decided to impeach that entire court. The GOP had flipped the legislature in 2014 for the first time in decades, and it had seized the governorship in 2017; only the supreme court stood in the way of one-party rule in the state. 

“All of a sudden, we had this right-wing legislature wanting to impeach everybody,” she recalls, “and they wanted in my opinion to get rid of us so they could put their own.”

When Workman read this summer that Protasiewicz may be impeached, shortly after her victory flipped Wisconsin’s high court to the left, she was struck by the parallels with what she herself went through. “The Wisconsin situation is a complete power grab to undermine democracy,” she told Bolts. “It shocks me because it even goes further than the one that I experienced.” 

She added, “It’s this whole thing that’s scary going on in this country, that if you can’t defeat people’s votes then you do it in some other way.” 

Protasiewicz won Wisconsin’s supreme court election in April, giving liberals a 4-3 majority on the court, their first in 15 years. But Republicans began to float impeaching Protasiewicz before the results were even known. The party has already locked down control of the legislature, using aggressive gerrymanders to protect itself from election defeats. It has also deflated the powers of the Democratic governor, Tony Evers, undercutting his authority to appoint people to executive branch positions. 

But by electing Protasiewicz, voters threatened the GOP’s hold on power by opening the door to an anti-gerrymandering ruling by the court. Just days after Protasiewicz was sworn-in, voting rights groups filed two lawsuits asking for the state’s legislative maps to be struck down as unconstitutional gerrymanders. 

Speaker Robin Vos, former Governor Scott Walker, and other Republicans have demanded that Protasiewicz recuse herself from these cases or else risk impeachment. They say comments she made while running—she notably called the state’s current legislative maps “rigged”—mean that she has “prejudged” the cases. Candidates in Wisconsin routinely share views on issues or are attached to political parties, though, and the Wisconsin Judicial Commission dismissed complaints filed by the GOP that her statements violated ethics rules.

Vos, who leads the Assembly, where impeachment proceedings would start, is still pushing forward this month. Thanks to the large majorities the state’s gerrymandered maps have delivered the GOP, his party currently holds enough seats to impeach Protasiewicz in the Assembly and then convict her in the Senate if all Republican lawmakers hold together.

Removing Protasiewicz would go far beyond the legal guardrails for impeachment laid out in the state constitution. Legal experts in Wisconsin say a plain reading of the document undermines the Republicans’ case against Protasiewicz.

But these legal barriers may not constrain the GOP. Constitutional protections are only as strong as the will to enforce them. Republican lawmakers may try to blow past them even if there is little legal justification, because at that point it’s uncertain at best who or what could stop them. 

Most notably, the allegations against Protasiewicz do not seem to fit the circumstances under which Article VII of the state constitution contemplates impeachment: It reserves it for “corrupt conduct in office, or for crimes and misdemeanors.” Protasiewicz is not accused of criminal conduct, she has yet to do much of anything “in office,” and she faces no allegations of bribery or personal gain, which is traditionally how corruption was defined. 

“It’s a difficult fit with the historical understanding of corrupt conduct in office,” says Chad Oldfather, a professor at Marquette University Law School. “You are talking about a justice being impeached before even hearing or deciding a case,” says Doug Keith, senior counsel in the Brennan Center’s Judiciary Program, a national program that tracks state courts. “This is not how impeachment has been used, or how I would expect it to be used.” 

In fact, Wisconsin has a separate procedure, known as “removal by address,” allowing lawmakers to remove judges for “misconduct”—a broad category that would better fit the GOP’s charges against Protasiewicz. Republicans lack the votes for the far higher threshold that this procedure requires in the Assembly (two-thirds, rather than a simple majority).

But Keith added that this may not matter in practice to how this confrontation unfolds, saying, “it’s a separate question of what would happen if the legislature followed through on this.” 

Miriam Seifter, a professor at the University of Wisconsin-Madison Law School, also says she does not think that the allegations against Protasiewicz meet the constitutional standards of impeachment, but she too warns that lawmakers may decide they don’t care, betting that no one will check them.

“That is one of the precarious aspects of this situation,” says Seifter, “once one legal actor does not adhere to the constitution, it’s hard to predict the rest of the legal trajectory.”

A lawsuit would likely follow Protasiewicz’s impeachment, but it’s unclear whether any judge would agree to even consider if the charges against her fit the circumstances laid out in Article VII. Courts have typically deferred to lawmakers on impeachment, treating it as a “political question” that is not subject to judicial review, Oldfather and several other legal experts told Bolts. Still, Oldfather also said there is no telling how that question would go in Wisconsin because there’s virtually no precedent in Wisconsin’s court system. (No public official has been impeached in Wisconsin since 1853.) 

Even if courts agreed to review the articles of impeachment, the core effect of the GOP’s actions is to affect who sits on the highest court—targeting who gets to even interpret the constitution in the first place. Protasiewicz recused herself this month from a lawsuit asking the state supreme court to block attempts by the legislature to impeach her, signaling that liberals have already lost their edge on the supreme court for cases that touch on her removal.

“It’s a legal question that’s to a greater extent than most floating in this sea of politics,” says Oldfather on the matter of whether impeachment is an appropriate response to the accusations against Protasiewicz.

Vos, the state Speaker, did not respond to a request for comment on these constitutional concerns. On Sept. 13, he said he was setting up an advisory panel made up of former supreme court justices to consider when a justice can be impeached. One of the members is a former conservative justice and former Republican lawmaker who donated to Proasiewicz’s opponent.

West Virginia’s GOP in 2018 similarly tested the bounds of their power once they had the votes. “Impeaching the entire court was entirely political,” says Robert Bastress, professor at the West Virginia College of Law, “it was motivated by Republicans who had just recently taken over the legislature, and they were flexing their muscle.” 

The overhaul of West Virginia’s supreme court dates back to 2018, when Chief Justice Allen Loughry, a Republican, was federally indicted on fraud and witness tampering charges that stemmed from allegations of him using state funds for his personal enjoyment and spending excessive amounts of money on furnishing his office. A concurrent fraud scandal also engulfed Justice Menis Ketchum, a Democrat. By mid-2018, Ketchum had pled guilty in a federal case and resigned, and Loughry was suspended from the court. 

But Republicans also went after the remaining members of the supreme court, alleging in part that they were all responsible for the court’s insufficiently clear ethics policies. 

“They had very good reasons for impeaching two of the justices—two of them were convicted of federal felonies—there were no grounds for impeaching the other three,” Bastress says. 

Workman stood her ground after her impeachment and fought the proceedings until a panel of state judges blocked the Senate from holding a trial and ruled that the legislature was violating procedural requirements in its impeachment proceedings. The state Senate, which by then had acquitted the GOP chief justice and was gearing up for a trial against Workman, fought the ruling but the U.S. Supreme Court let it stand. As a result, Workman got to stay on the court, though she then chose not to seek re-election in 2020. 

But by the time a court intervened to stop West Virginia’s impeachment trials, another Democratic justice, Robin Davis, had already chosen to resign rather than let the proceedings against her drag out. To replace Davis, Governor Jim Justice appointed Evan Jenkins, one of the state’s Republican U.S. representatives. 

“What the legislature was attempting to do was to stack the court with what I would call their puppets,” Davis told Bolts. “They were hell bent on getting control of the court.” She says she did not want to participate in what she viewed as “a very unfair, highly political proceeding.”

Unlike West Virginia in 2018, Wisconsin is a closely divided swing state with obvious stakes for national politics, making it likely that a judicial impeachment would receive far more attention and become a magnet for fundraising and political activism. That also gives Democrats an additional avenue to respond: activating public opinion.

In an interview with Bolts, Ben Wikler, chair of the Wisconsin Democratic Party, stressed that he is focused on putting pressure on Republican lawmakers. Democrats have also launched a multimillion-dollar campaign to air ads on this situation. 

“Our number one goal in the first phase of this fight is to make sure that every Wisconsin voter knows Republicans are threatening to overturn the election, and to encourage them to contact their legislators to let them know how they feel about it,” Wikler says. “It’s going to remind voters exactly why they voted for Democrats in the midterms and threw out Trump in the first place, which is that the Wisconsin Republicans are a clear and present danger to democracy.”

Politically-speaking, Democrats’ strongest asset in the confrontation over their new supreme court majority is the governor’s mansion: If Republicans manage to remove Protasiewicz, Evers would have the power to appoint a new justice to fill the vacancy, and he would presumably pick another liberal-leaning justice to replace her.

Vos and his allies may still be thinking it’s worthwhile to float impeachment because the threat alone could persuade Protasiewicz to bow to their demand and recuse herself on at least redistricting cases; Protasiewicz has not at this stage indicated what she would do. In addition, if they do impeach and convict Protasiewicz before Dec. 1, it would trigger a special election in 2024, giving conservatives a shot to flip back the court next year. 

Still, even if there is an election in 2024, Evers’ interim appointment would sit on the court for long enough that the court would have time to strike down gerrymanders.

To tie Evers’ hands, Republicans may turn to a very aggressive maneuver. If the Assembly impeaches Protasiewicz, it would suspend her and therefore deprive liberals of their majority until the Senate holds a trial that results in either an acquittal or conviction. But the Senate could indefinitely delay trial on the articles of impeachment and keep Protasiewicz sidelined without allowing Evers to appoint a replacement. The state constitution sets no timeline for how quickly the Senate has to take up articles of impeachment. 

“It’s one of those situations where the constitution assumes good faith, regularity of proceedings, and doesn’t spell it out,” Oldfather says.

Protasiewicz could still try to sue to force a resolution, some legal observers say. But here again, she and state Democrats also have political leverage that may prove more important than possible lawsuits. 

At any moment, Protasiewicz could break the logjam by resigning, allowing Evers to appoint a replacement even if at a personal cost to her. In a bizarre twist due to the particularities of state law regarding the timing of elections (there can be no more than one supreme court seat on the ballot on any given year), if Protasiewicz resigned on or after Dec. 1, Evers’ replacement appointee would get to serve until 2031 without facing an special election (seats on the court are currently scheduled for re-election each year from 2025 to 2030)—hardly an appealing prospect for the GOP. 

Seifter, the University of Wisconsin professor, also envisions a scenario in which Evers could claim the authority to appoint a justice if the Senate is delaying a trial.

“It’s hard to say how the courts or other actors will respond in this unprecedented situation,” says Seifter. “For example, the governor could declare that the legislature’s inaction creates a temporary judicial vacancy, or a court—whether the high court or a lower court—could reject the holdup as an encroachment on the judicial function. There isn’t clarity at this point on who would have the final word.”

Republican lawmakers this week also introduced articles of impeachment this week against the state’s elections chief, Meagan Wolfe, whom they have been aiming to fire all summer. The charges against Wolfe stem largely from conspiracies about the 2020 presidential election that have been debunked. Either Protasiewicz or Wolfe would be the first Wisconsin official impeached in roughly 170 years.

Such extraordinary events, if they unfold in coming months, may also ratchet up what other politicians are willing to consider in other states. Republican lawmakers in Montana, Ohio, and Pennsylvania in recent years have talked about impeaching state supreme court justices whose decisions they disliked, but have ended up not moving forward. 

“You see states learning from one another and adopting the strategies that legislators have found successful in other states to gain an upper hand in their courts,” says Keith of the Brennan Center. “And so if this happens in one state, I would not be surprised to see other states follow.”

The post With Impeachment Push, Wisconsin GOP Tests Bounds of Political Power appeared first on Bolts.

Known as the independent state legislature doctrine, the theory claims that the Elections Clause of the U.S. Constitution grants state legislatures near-total authority to regulate federal elections and draw congressional districts, and that no other institution can check them. Had justices embraced the doctrine, it could have drastically curtailed if not eliminated the ability of state courts to thwart lawmakers looking to suppress votes, gerrymander election maps, and subvert election results. It could even have sidelined governors, independent redistricting commissions, and other state officials from overseeing federal elections.

Instead, writing for a majority of six justices, Chief Justice John Roberts rejected the theory. “The Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review,” he wrote in a decision that’s largely focused on the power of state courts.

Roberts was joined by the court’s three liberal members, Justices Elena Kagan, Ketanji Brown Jackson, and Sonia Sotomayor, as well by Justices Amy Barrett and Brett Kavanaugh. Three conservative justices dissented. 

Tuesday’s decision keeps alive high-stakes litigation challenging gerrymanders and onerous voting requirements in state courts, such as a lawsuit challenging Wisconsin’s congressional map that is expected to be filed once the state supreme court flips to a liberal majority this summer. Given the conservative bent of the federal bench, civil rights litigants have increasingly turned to state courts on all sorts of matters from abortion rights to criminal justice; an adverse ruling in this case could have gutted that strategy on voting rights.

Stuart Naifeh, manager of the Legal Defense Fund’s Redistricting Project, stressed his relief that his organization will be able to continue litigation on issues they cannot bring in federal courts. “The Supreme Court has affirmed that state courts are not barred from addressing critical issues, like partisan gerrymandering, which the Supreme Court held in 2019 that it did not have jurisdiction to consider,” he said in a statement, alluding to a ruling, also authored by Roberts, that partisan gerrymandering claims in particular cannot be brought in federal court. 

He added, “By rejecting ISL theory, the Supreme Court has set an important precedent that state courts retain the authority to prevent suppression and protect their citizens from disenfranchisement.”

Still, Tuesday’s ruling came with a caveat whose full ramifications may not be known until 2024, if not later. 

The fifth section of Roberts’ opinion stresses that the authority of state courts authority is not unlimited when it comes to regulating federal elections, and that the U.S. Supreme Court has an “obligation” to intervene to ensure that state courts do not “transgress the ordinary bounds of judicial review.” This language is vague as to how the justices will test this criteria, and when they might intervene. But in a break with usual practice, it hints that they may be more aggressive going forward in policing how state courts interpret their own state’s laws and constitutions.

In light of the right’s dominance on the federal bench, this caveat could end up undermining state courts as a fruitful alternative for voting rights litigation after all. And with the 2024 presidential election just around the corner, it is also creating new uncertainty for future election cases. One election law expert labeled it a potential “time bomb.”

The independent state legislature doctrine arose for the first time in recent memory in the litigation over the 2000 presidential election, but the doctrine’s visibility in conservative legal circles grew as state courts asserted a greater role in combating partisan gerrymandering, as well as in the aftermath of the 2020 election.

In late 2020, several GOP-led states asked the U.S. Supreme Court to block the certification of some states’ election results to help Donald Trump overturn his loss to Joe Biden. They argued that changes ordered by state courts in places like Pennsylvania, for example, had violated the U.S. Constitution because the authority to order those changes should have been reserved for lawmakers. This legal effort failed but some conservatives remained intent on further testing the doctrine.

When the North Carolina Supreme Court in 2022 struck down a congressional map approved by the state legislature as an illegal gerrymander, state Republicans invoked the independent state legislature theory and appealed to the U.S. Supreme Court. Voting rights advocates grew alarmed when it agreed to hear the case.

The federal court heard Moore vs. Harper in December, just weeks after control of the North Carolina’s supreme court flipped from a liberal to a conservative majority in the midterms, and the new court in early 2023 overturned the earlier rulings striking down the state’s congressional map. Some court observers thought that the U.S. Supreme Court may use this as an opportunity to declare the case moot, deferring the showdown over the independent state legislature theory to a future date.

But the 6–3 majority determined that the case wasn’t moot and proceeded to rule on the merits. Writing for the majority, Roberts pointed to a long string of precedents in which the U.S. Supreme Court has held that state legislatures’ power under the Elections Clause isn’t absolute.  In the past century, Roberts detailed, the court has greenlit many instances in which the rules of federal elections have been set by actors other than state lawmakers. Those include voters using ballot initiatives to reject a redistricting proposal, a governor vetoing a map, and independent redistricting commissions drawing new congressional lines.

Roberts’s defense of independent redistricting commissions is especially striking since he wrote a vocal dissent in the 2015 case that tested their constitutionality. Roberts castigated Justice Ruth Bader Ginsburg’s majority opinion in that case as “perform[ing] a magic trick,” and many thought the decision was under threat of being reversed. But on Tuesday Roberts seemed to have changed his tune and approvingly cited Ginsburg’s opinion.

Justice Clarence Thomas, joined by Justice Neil Gorsuch and only in part by Justice Samuel Alito, dissented on Tuesday. He argued the case should have been dismissed as moot but he also made a case for the doctrine on the merits. State constitutions, he wrote, “cannot control what substantive laws can be made for federal elections.”

Despite North Carolina Republicans’ failure to get their arguments upheld, Tuesday’s ruling brings no relief to the original plaintiffs who had challenged the GOP’s gerrymander. The new Republican majority on that state’s supreme court has given lawmakers there a virtual carte blanche in how they redraw maps, and the GOP is now widely expected to adopt a brutal gerrymander that could give them as many as four new congressional seats in 2024.

Moreover, many voting rights lawyers and election law experts are now expressing nervousness about Part V of Roberts’ opinion: This is the section that defies the typical deference that federal courts have shown to state court decisions that are grounded on that state’s own statutes and constitution. It carves out an exception to that general practice when it comes to federal election cases. 

The U.S. Supreme Court can always receive appeals of state supreme courts decisions, but its typical practice is to not review the validity of rulings that are focused on state texts. Moore vs. Harper tweaks that approach. Citing the unusual opinion overruling the Florida Supreme Court in Bush v. Gore (this is the first time ever that a majority opinion has cited that case), Roberts’ majority opinion hints that his court will keep a more watchful eye on state judges.

The chief justice nods toward a soft version of the independent state legislature theory. “State courts may not transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections,” he writes. “The Elections Clause expressly vests power to carry out its provisions in ‘the Legislature’ of each State, a deliberate choice that this Court must respect.”

In practice, there is no way of fully anticipating what this means for future decisions, and whether the U.S. Supreme Court will step in only for extraordinarily rare cases or more frequently, until those cases arise. “The Court makes clear that it is not providing any standard at all—even an attempt at a standard—as to what this means concretely,” Rick Pildes, a professor at New York University School of Law, wrote on Tuesday.  

The concern is that this ruling may give the conservative majority on the U.S. Supreme Court more room to second guess state supreme courts—and that this will be tested in the cases that are bound to arise in the midst of the crucible of the upcoming presidential election. Moore vs. Harper, writes Rick Hasen, a professor at the UCLA School of Law, “is going to potentially allow for a second bite at the apple in cases involving the outcome of presidential elections.”

Still, the U.S. Supreme Court’s rejected voting rights organizations’ worst fears, and these groups largely celebrated Tuesday’s ruling. This was their second court victory this month, after a decision earlier this month that salvaged what’s left of the Voting Rights Act. 

Both cases could have thrown a major wrench into how U.S. elections are run but a majority of justices chose to mostly uphold the status quo. 

“This is the second time this month that the Supreme Court has ruled in favor of protecting our democracy through voting rights,” Maya Wiley, president of The Leadership Conference on Civil and Human Rights, which filed an amicus brief in this case, said in a statement. “We will continue the fight to ensure all of us can participate in our democracy and hold accountable the elected officials who abuse their power.”

The post Supreme Court Refuses to Empower State Legislatures to Run Elections as They Please appeared first on Bolts.

The case asked whether the congressional map Alabama adopted in 2021 is an impermissible racial gerrymander. After the legislature drew just one majority-Black district out of seven in a state that is roughly 25 percent Black, a lawsuit filed by voting rights groups argued that this violated section 2 of the VRA. A trial court sided with plaintiffs, but in early 2022, the Supreme Court stayed that ruling, let the state use the map for the midterms, and granted a review of the case. For voting rights advocates, the risk went beyond the court preserving Alabama’s map: they feared its ultra-conservative majority may render Section 2 altogether moot. 

Instead, the court on Thursday issued a reprieve for the VRA. In a 5-4 ruling authored by Roberts—joined by Justice Katanji Brown Jackson, Sonia Sotomayor, Elena Kagan, as well as Brett Kavanaugh—the court reaffirmed Section 2 and used it to strike down Alabama’s map. The state now has to create a new district that will be likely to elect a Black Democrat, an outcome that may trigger similar results elsewhere in the South, starting in Louisiana. 

Voting rights advocates breathed a sigh of relief at the surprise outcome, thrilled to see the VRA survive.

“I was completely floored,” Ruth Greenwood, who coordinated an amicus brief on behalf of the plaintiffs as director of Harvard Law School’s election law clinic, told me of her initial reaction. “It’s not just a win for the plaintiffs, it’s a full-throated defense of the way the Voting Rights Act has been applied to redistricting. It’s pretty fantastic.” 

But they also remained wary as they cheered, warning that by chipping away at the VRA and other voting rights tools for years, the court has left them shadows of their old selves. The decision on Thursday does nothing to revive Section 5 of the VRA, which forced certain jurisdictions with a history of racist voter suppression to seek preclearance from the Department of Justice before drawing new lines or making other changes to their voting rules; absent that requirement, litigation often drags on for years after harmful changes are already into place.

“I view this outcome as a victory, but it’s a victory in the context of profound losses that still need to be addressed,” says Justin Levitt, a law professor at Loyola who is deeply experienced in redistricting litigation. Levitt worked at the DOJ at the tail end of the Obama administration and at the White House as a voting rights adviser in the early stages of Joe Biden’s presidency. 

I talked to Levitt hours after the court’s ruling Thursday to break down Allen v. Milligan, racial gerrymanders, how Section 2 has been applied—and how it will be applied going forward.

In an extensive conversation, Levitt laid out conflicting emotions—calling the ruling a “status quo decision” that largely sticks to long-established precedent but also explaining why, in an era of dominant conservative jurisprudence, that alone feels momentous.

Most court observers expected the court to further gut the VRA. How surprised are you by this ruling?

I’m very happily surprised. And the reason for the surprise isn’t a knee-jerk reaction to the justices’ conservative disposition—this is a very conservative court, and it remains a very conservative court even after today. 

I’m surprised because this court has not been particularly friendly to voting rights, particularly voting rights in the racial justice sphere, particularly the Voting Rights Act. I’m surprised because the chief in particular has expressed hostility to some basic tenets of the Voting Rights Act, including in opinions, including going back to his time at the justice department. And I’m surprised because, in the lead up to this case, a trial court gave an A-plus reading of existing precedent, and the Supreme Court in January of 2022 stayed that; that led to an expectation that the court was prepared to upend an awful lot of settled precedent. So all of the evidence leading up to this case pointed to the potential for a very bad ruling.

Let’s start with the basics: The court said Alabama’s congressional map violated Section 2 of the VRA. What’s the history of Section 2, and how does it assess such a map? 

In 1982, Section 2 of the VRA was amended to say that maps with a discriminatory effect would be illegal. In a 1986 case, Thornburg vs Gingles, the court clarified what that would mean in practice: there would be a number of things the plaintiffs have to prove in order to make a successful case. 

Condition one: The minority group or groups have to be big enough to be a majority in a single member district; if they’re not, that shows that the way the lines are drawn isn’t the thing keeping minority voters from political power. 

The second thing you have to show is that there’s a difference in the way minority voters vote.  The VRA doesn’t assume that, for example, Black voters and white voters are going to vote differently; but if you can prove that they vote differently, and that districts are aligned such that they lose most of the time, then that’s a potential problem. 

The third thing you have to prove is that there’s a tie-in to discrimination; it’s not just dumb luck. This does not have to find a specific intent with respect to the lines: It can be discrimination elsewhere in the social or electoral structure that leaves minority voters at a disadvantage. The easiest way to see it is in literacy tests in the original VRA: It’s obvious if you keep a segment of population from being able to read and write, and then you design a voting rule that says you got to be able to read and write in order to participate, that the earlier discrimination feeds the later problem. The VRA is meant to break down these distinctions; if you have discrimination, and you have an electoral process that turns that discrimination into electoral loss of power, then you’ve got to fix the electoral loss power.

Many voting rights advocates worried that this case would obliterate the test you just laid out, but it did not. How would you describe the ruling’s significance?

The significance of today’s case is that it reaffirmed that, yes, this is how we do VRA cases.  The stakes were that the supreme court could have changed the rules entirely; Alabama was asking the Supreme Court to change the rules in really radical ways—and the court said no. 

The court didn’t make it any easier to win voting rights cases. It just declined to make it much, much, much, much, much, much harder. This is a status quo decision. 

Don’t get me wrong, I’m very excited by today’s result, and I think voting rights activists are very excited by today’s results. But it’s a measure of the fetal position we find ourselves in as voting rights advocates that the court just doing its job gets us excited. The fact that the court didn’t blow up the entire structure, and the fact that that’s cause for celebration, shows you a little bit about how far the window has moved.

When it comes to those radical claims Alabama made in the case, what worried you the most going into the ruling? What changes are you most relieved to avoid?

There were so many. Alabama threw a bunch of grenades out on the ground, and the supreme court just declined to pull any of the pins. The theories that Alabama was putting forward would have radically changed the construction of the VRA across the board, and it shows how much the Overton window has shifted that people took Alabama seriously. 

One of the things they claimed is that you need to show an intent [to discriminate], and not just effect; and that discrimination is the sole reason for the map looking like it did, not just one of the reasons. That’s a radical revision, not just of voting rights law, but of racial discrimination law generally—and of law on any discrimination. Alabama also argued that Section 2 of the VRA doesn’t apply to redistricting at all, which is patent nonsense. 

This was first and foremost a case about Alabama’s map. So how did the court test it against Section 2, and what’s next for redistricting there?

The case in Alabama was whether there should have been a second congressional district drawn in Alabama responsive to Black voters there. Alabama said there should only be one; litigants said at this point there should be two.

So the way in which [the Gingles test] cashes out in Alabama: Condition one, there are enough minority voters to form a reasonable second congressional district responsive to the minority vote. Condition two, voting is exceedingly polarized by race. And is there a tie-in to discrimination? Yes, unfortunately, Alabama shows not only the lingering impacts of past discrimination, but present age discrimination that helps you understand why the loss of minority political power is not just happenstance. 

So it requires a second district that responds to minority voters. 

The trial court didn’t say you have to draw a district exactly here. It said to the legislature to go back and fix it. The legislature gets first shot, and the trial court will be watching very carefully.

Alabama’s map was adopted two years ago and was used in the midterms last year. How do you address the challenge that litigation takes so long that illegal maps are in place for years no matter the final outcome?

Voting cases are different because you can’t fix the damage afterwards. Discriminatory elections have consequences: They’re taking place, and they’re discriminatory, and that means that laws are being put in place and executive actions are being instituted in ways that are not legitimate. The other thing is that VRA cases are hard and complicated; they would take years even if the defendants weren’t fighting like crazy, and they’re often fighting like crazy

That’s why it was so important to have the preclearance regime of Section 5: That stopped the problem before it took effect. And since the Shelby County decision, absent action from Congress, that’s just gone. Folks are right to be frustrated, even with today’s decision.

The supreme court stayed the trial court’s decision against the map in early 2022, saying that it was too close to the election to change it. Could that happen again? Could litigation over a new map drawn by lawmakers drag on for so long that 2024 is held under other illegal lines?

Theoretically yes, because people in robes do what people in robes want to do. So could it happen? Sure.

But I think that’s extremely unlikely. The trial court was very careful in its original opinion, and there’s no shortage of attention now that the Alabama voters were due a map last cycle and they had to sit through an election that was discriminatory. The supreme court has now said the trial court was right, and the trial court is likely to give the legislature a real shot but it is also extremely likely to monitor the legislature’s work very carefully and demand proof that its new math satisfies the VRA and remedies the problem. I think that if the legislature engages in bad faith, particularly in drawing a map that does not fix the problem, the court will step in.

I’d like to look beyond Alabama to what the ruling signal for future cases. For one, there’s similar litigation in Louisiana and speculation of a broader domino effect in the South. What does this decision mean for other states?

I think of Louisiana as the next map standing, the one most directly related, and this will help the litigants in Louisiana proceed in a much more straightforward analysis of the Voting Rights Act than people were expecting. I don’t think it’s far to assume Louisiana is going to fall. There are also pending challenges in Georgia and in Texas, a somewhat related case in Florida (though it’s under the state constitution). So there are certainly other cases in the pipeline. 

You’ve referred to the decision as preserving the status quo. But is there any small way in which it makes it harder or easier for future lawsuits to meet the Gingles test?

It’s mostly the same. There are little caveats in the opinion, caveats that were there in the law before, little pieces that I’m sure states will use to fight back against VRA claims; I don’t think any of them are new, they may be slightly differently phrased.

What’s an example of such a caveat?

The court emphasized VRA cases are hard. The chief said, look, this isn’t that many districts we’re talking about and you don’t have to worry about proportionality because no state has proportional representation for its communities of color. That’s a pretty big societal red flag, to not worry communities of color are represented consistent with their numbers in the population. And that also jumped out at me as recognizing the limitations of litigation under the VRA as currently construed; the court’s not saying you should bring and win a whole bunch of cases.

Justice Kavanaugh, a decisive fifth vote in the case, wrote a concurrence that qualifies some of the majority opinion; he states that race-based redistricting cannot “extend indefinitely.” Does that concern you, as to what it means for this future pipeline?

No. I mean, his concurrence reflects some wishy-washiness, but that wishy-washiness is all over the rest of his jurisprudence. This is a majority that surprised people because it’s a majority that most people were not counting on in VRA cases, and I think the skepticism leading up to today is still warranted for cases tomorrow.

Throughout our conversation, you’ve warned that the situation remains precarious for VRA litigation no matter today’s decision. Taking a step back, how would you assess the health of that law at this juncture—to what extent has it become a shadow of itself?

It’s part of why we’re in the fetal position. There’s absolutely no question that the VRA remains one of the crown jewels of the civil rights movement and that it is still one of the most powerful tools there is. And also, in its current state, it is nowhere near enough. Shelby County was a huge blow; the Brnovich decision made all Section 2 cases harder; and there have been a number of smaller decisions that have also made cases harder to prove and harder to win. 

It’s part of why, like others, I view this outcome as a victory. But it’s a victory in the context of profound losses that still need to be addressed.

It’s part of why there was such a strong emphasis on restoring the Voting Rights Act in the John Lewis Voting Rights Restoration Act. To secure real justice, it still has to be a priority. You really need Congress to step in to set national rules. 

The interview has been edited for length and clarity.

The post Surprise After Supreme Court Saves What’s Left of the Voting Rights Act appeared first on Bolts.

Their cursed streak ended on Tuesday. Janet Protasiewicz, a Milwaukee judge who ran with Democratic support, won the seat of a retiring conservative justice after a heated campaign that pulverized national spending records.

Her victory hands liberals a majority on the supreme court for the first time since 2008. They will keep it until at least 2025, when Justice Ann Bradley’s term expires. 

Protasiewicz easily beat her conservative opponent, former Justice Dan Kelly. She leads by 11 percentage points as of Wednesday morning, a feat powered by huge margins and comparatively strong turnout in Milwaukee and Madison’s Dane County, the state’s two urban cores.

Turnout in Dane County on Tuesday was at least 50 percent higher than in 2019, when conservatives scored a narrow win to retain the court. In past elections, liberals fell short due to paltry turnout among their base; off-year races tend to favor more conservative candidates. But the issue of abortion dominated the campaign this year and likely helped mobilize voters in Protasiewicz’s favor. She heavily featured her support for reproductive rights in her campaign ads, while anti-abortion groups rallied around Kelly.

“I always said we have to hit rock bottom before people realize what’s going on here, and I think we’re there,” Christine Sinicki, a Democrat who represents Milwaukee in the state House, told Bolts last week. “If they can strip away our rights to control our own healthcare, what’s next?”

Now the court’s flip could pave the way for abortion rights to return to Wisconsin. The newly-liberal majority makes it far more likely that the court strikes down the state’s 1849 ban when it hears a lawsuit that is working its way through state courts, much like other state courts have done since the fall of Roe last summer. 

As conservatives have solidified control on the federal judiciary, civil rights organizations have looked toward state courts and state constitutions as an alternative pathway of litigation. “State courts are getting so much attention because they can—and often do—interpret their own state constitutions in ways that differ from federal constitutional doctrine,” says Miriam Seifter, the co-director of the State Democracy Research Initiative at the University of Wisconsin-Madison law school. 

“State constitutions typically contain more rights than the federal constitution, and they prioritize democracy,” she added. 

Democrats hope that the new supreme court majority also changes course on matters relating to ballot access and voting rights. Last year, the conservative justices issued a 4-3 ruling that banned the use of drop boxes. They also required that the state use a “least change” approach when redistricting, dashing Democrats’ hope of moving away from the heavily skewed maps that locked them out of power through the 2010s.

As a result, Wisconsin districts are among the nation’s most gerrymandered. Its legislative maps virtually guarantee that Republicans will secure majorities in the state Assembly and Senate, even if Democratic candidates get more votes. While Democrats hold other statewide offices, like governor and attorney general, they have also been constrained to winning just three congressional districts out of eight in this divided state. 

But while gerrymandering has made the GOP’s stronghold on Wisconsin’s state government largely election proof, the supreme court race gave Democrats a rare opportunity to crack this wall. State advocates have already signaled that they will challenge the current maps, which Protasiewicz has called “rigged,” based on provisions in the state constitution.

“There’s really only one path in the next several years to undo the most extreme gerrymander in the country, and that’s the April supreme court race in Wisconsin,” Ben Wikler, head of the Democratic Party of Wisconsin, told Bolts earlier this year. 

If the newly liberal court majority forces new maps, it may help Democrats compete for legislative power in the state. It would also affect the national battle for Congress in 2024.

Republican lawmakers have signaled that they will use their gerrymandered majorities to fight the court. Several Republican said in the run-up to Tuesday, before Protasiewicz even won, that they would consider impeaching her and removing her from office.

The GOP needs a supermajority in the state Senate to pull off that move and the resignation of a longtime Republican senator late last year left them one vote short. The special election to replace her was also held on Tuesday in a red-leaning district in the Milwaukee suburbs, and Republican Dan Knodl narrowly prevailed, handing the GOP sufficient votes to impeach and remove public officials on party-line votes. 

Such a move may be politically and constitutionally explosive but Republican lawmakers may be largely insulated from electoral consequences as long as they head off any new judicially-ordered maps that curb their power in the statehouse. In Ohio last year, prominent Republicans similarly considered impeaching their chief justice after she voted to strike down GOP-drawn gerrymanders in 2022 but she was already set to retire that year.

Should there be a vacancy on Wisconsin’s supreme court, the governor is entitled to appoint a new justice. The governor through January 2027 is Democrat Tony Evers. Republicans have also floated targeting other officials like Milwaukee’s prosecutor; no public official has been impeached in Wisconsin since the 1850s, according to the Milwaukee Journal Sentinel.

Liberals on Tuesday also scored another judicial win, this one for the Appeals Court, with labor lawyer Sara Geenen ousting conservative incumbent Bill Brash. Democrats won other local elections from Racine to Outagamie County.

The supreme court race saw extraordinarily levels of spending, more than tripling the previous national record set by a judicial race. Billionaires donated millions in support of both candidates, and outside groups poured in money as well, taking advantage of lax campaign finance rules. 

Judicial elections in Wisconsin are technically nonpartisan, but political parties are heavily involved on behalf of the candidates. Kelly, who was appointed to the supreme court in 2016 by then-Republican Governor Scott Walker, has close ties to the GOP and advised the party on a proposed scheme of installing fake presidential electors after the 2020 election.

Kelly amassed a record that was broadly hostile to civil rights and friendly to prosecutors and law enforcement while on the court between 2016 and 2020, when he was ousted by liberal challenger Jill Karofsky. During that campaign, Kelly demonized Karofsky as a danger to public safety. Three years later, he recycled that same playbook against Protasiewicz—once again unsuccessfully. 

Republican advertising lambasted Protasiewicz over crime, alleging that as a judge she offered too lenient sentences against defendants. “Law enforcement’s hands are tied when judges like Janet Protasiewicz refuse to hold dangerous criminals accountable,” one sheriff, Dodge County’s Dale Schmidt, says in a Kelly ad. (In Chicago, just south of Wisconsin, another prominent candidate who anchored his campaign on law enforcement support also lost on Tuesday.)

Last week, Kelly was endorsed by another Republican sheriff, Racine County’s Christopher Schmaling. A prominent far-right figure, Schmaling has threatened local election administrators with prosecution since 2020, amplifying the efforts by many conservatives to spread false conspiracies about Donald Trump’s loss in the state. 

Election deniers have harassed public officials like Green Bay Mayor Eric Genrich, a Democrat who has faced an ethics complaint and a recall effort for accepting an outside grant to help run the 2020 elections during the pandemic—as did hundreds of localities across the state of Wisconsin and around the nation. 

Genrich was also on the ballot on Tuesday, running for re-election in Green Bay, the state’s third most populous city, against a Republican challenger. He prevailed, riding the coattails of Protasiewicz’s strong performance in the region.

Editor’s note: The piece was edited on April 5 with the result in Wisconsin’s legislative special election. 

The post Liberals Flip the Wisconsin Supreme Court After Fifteen-Year Wait appeared first on Bolts.

The suspense on Tuesday rested largely on which of the two conservatives would make it to the runoff. Kelly, who finished narrowly ahead of local judge Jennifer Dorow, with 24 to 22 percent, was Democrats’ preferred opponent due to his arch-conservative record, connections to Donald Trump, and re-election loss three years ago, and at least one liberal organization spent heavily in the run-up to the primary to hurt Dorow’s chances.

But Protasiewicz’s dominant showing became a story of its own. She finished with 46.4 percent of the vote, more than the two conservatives combined, with another liberal-aligned candidate, Everett Mitchell, coming in a distant fourth. Overall, the two liberals combined for 54 percent of the vote, with 46 percent going to the two conservatives. Judicial elections are ostensibly non-partisan in Wisconsin, but parties are heavily involved and the state bench is deeply polarized, with reports that one altercation between justices turned violent last decade.

Should Protasiewicz prevail in April, it would flip control of the court to the left for the first time since 2008. 

This would have huge ramifications for abortion, redistricting, ballot access, and a host of other issues that are often decided by courts, including, potentially, the fate of presidential elections in 2024 and beyond. 

Heavy gerrymanders have enabled the GOP to lock down control of the Wisconsin legislature with majorities largely impervious to shifts in the popular vote, an advantage the party has used to dilute the authority of the state’s Democratic governor and deny him routine appointments. The state also has no popular initiative process, so progressives cannot put measures on the ballot to protect abortion or voting rights, as they have in neighboring Michigan. 

For years already, Democrats have eyed this spring’s supreme court race as their rare opportunity to crack the GOP’s iron-clad and largely election-proof control on state government.

“There’s really only one path in the next several years to undo the most extreme gerrymander in the country, and that’s the April supreme court race in Wisconsin,” Ben Wikler, head of the Democratic Party of Wisconsin, told Bolts. 

Democrats hope that a supreme court with a newly liberal majority may strike down the state’s current political maps. This is what happened last decade in Pennsylvania after Democrats flipped control of the court, which later imposed mid-decade redistricting. If Wisconsin’s congressional map is redrawn, it may sway several seats. New legislative maps, if they make Democrats competitive, could also open the door to a swath of other policy changes.

“As long as Republicans can lose the popular vote but still control majorities, democracy essentially doesn’t exist in Wisconsin,” Wikler said. “But if the conservative dominance of the supreme court ends, the entire apparatus could unravel. Ideas that have enormous popularity in Wisconsin could become law,” he added, mentioning Republican lawmakers’ refusal to expand Medicaid as provided by the Affordable Care Act.

A spokesperson for the state Republican Party did not reply to a request for comment.

Both candidates have made their views on redistricting clear. Protasiewicz has called the maps in place in the state “rigged.” Kelly said this week that he would oppose a court intervention against them. 

Both sides of the spectrum have also cast this supreme court election as a de facto referendum on abortion rights in the state. 

The state has an abortion ban, adopted in 1849, that was triggered into effect by the U.S. Supreme Court’s decision last summer to overturn Roe vs. Wade. Democratic officials in the state are now suing to strike it down, and the case is expected to be heard by the state supreme court after a new justice joins it. 

Gracie Skogman, a spokesperson for Wisconsin Right to Life, which endorsed Kelly in January, told Reuters, “This is Wisconsin’s Roe moment.” Asked what she meant by this remark, Skogman told Bolts, “In the same way that the Roe decision prevented pro-life legislative efforts to fully protect preborn life, a state supreme court decision that finds a right to abortion in our state constitution could have a similar effect.” 

Protasiewicz has campaigned explicitly on her support for reproductive rights. “I believe in a woman’s freedom to make her own decision on abortion,” she says in one ad. A liberal majority, should she join the court, would be likely to overturn the state’s abortion ban, as state courts have done in Kansas and South Carolina.

Republicans are denouncing Protasiewicz as a “left-wing activist,” with Kelly saying on Tuesday that she would replace the rule of law with “the rule of Janet.” They have also attacked her as too lenient on crime. This is a near-exact repeat of their unsuccessful playbook against Jill Karofsky, the liberal contender in the state’s last supreme court race in 2020.

And they will have the same flag-bearer as they did that year. Kelly, who at the time was a sitting justice and was endorsed by Trump, lost that race to Karofsky by ten percentage points. And while he faults Protasiewicz for signaling how she will rule on key issues, Kelly has an intensely right-wing record.

A former president of the local chapter of the Federalist Society, the conservative legal organization, Kelly has a long history of statements that fan the flames of the culture wars. He criticized the U.S. Supreme Court’s decision to legalize same-sex marriage by writing that this “will eventually rob the institution of marriage of any discernible meaning.” He has said affirmative action and slavery are morally equivalent. He called Barack Obama’s presidential win a victory for “the socialism/same-sex marriage/recreational marijuana/tax increase crowd.”

And he has called Medicare and Social Security forms of “involuntary servitude,” Isthmus reported.

After then-Governor Scott Walker appointed him to the court in 2016, Kelly was a reliable member of the court’s conservative bloc, for instance authoring a decision in 2017 that struck down a local ordinance in Madison banning guns in public transit. He also consistently ruled in favor of prosecutors and against defendants.

Before and after his stint on the supreme court, Kelly worked and counseled prominent conservative organizations in the state. The Milwaukee Journal Sentinel reported last week that Kelly had advised the Republican Party on matters related to elections in late 2020, including in the aftermath of the 2020 presidential election. 

The former chair of the state Republican Party told the congressional committee that investigated the Jan. 6 attack on the U.S. Capitol that Kelly was part of “pretty extensive conversations” about conservative efforts to install fake electors that would vote for Donald Trump despite the Republican’s loss. Kelly’s team has denied supporting the scheme and has said attorneys should not be blamed for their clients’ views.

The state supreme court in December 2020 was bitterly divided when it rejected Trump’s bid to reverse his loss in the presidential race in a 4-3 vote. 

Since then, Wisconsin has remained a hotbed for election denialism, a movement in large part overseen by Michael Gableman, a former supreme court justice, and fears remain about similar efforts to overturn a presidential election in the future. Karofsky, the supreme court justice who ousted Kelly three years ago, wrote an article in Slate last week denouncing the harassment she has experienced since her vote rejecting Trump’s lawsuit.

Fueled by this confluence of issues, a slew of organizations, PACs, and billionaires injected millions into the race in the run-up to Tuesday and are preparing to spend far more over the next six weeks. Wisconsin stands nearly alone in the spotlight this year as one of only two supreme court elections this year, alongside Pennsylvania’s this fall, after a far busier 2022. 

It’s also led to increased public attention. Turnout on Tuesday was just a sliver of the turnout in the 2020 presidential election and the 2022 midterms, but it also soared—by 30 percent—compared to the most recent primary for a supreme court election three years ago. The turnout surge was far higher in liberal Dane County, home to Madison.

“The explosive turnout for the progressive candidates in the state Supreme Court primary demonstrates the intensity of Wisconsinites’ desire for reproductive freedom and democracy,” Wikler told Bolts.

The winner of Wisconsin’s runoff will replace conservative Justice Patience Roggensack, who is not seeking re-election, and secure a ten-year term. If Protasiewicz wins, liberals will have a majority on the court until at least 2025, when liberal Justice Ann Bradley’s term expires. 

But if Kelly prevails, keeping the court in conservative hands, liberals won’t have another chance to flip it until conservative Justice Rebecca Bradley’s term ends, in 2026. 

The post Wisconsin’s Supreme Court Runoff Takes Shape as Referendum on Abortion and Democracy appeared first on Bolts.

But the cast of characters who will steer the process got reshuffled last week, with two newcomers set to play influential roles. 

Meanwhile, the Republican chief justice who had sided with Democrats in last year’s gerrymandering cases exited the stage on Dec. 31. 

Some Democrats hope that they secured a new Republican ally—this time in the legislature, where Jason Stephens was unexpectedly elected Speaker thanks to a bipartisan coalition that included all House Democrats—and that this may mitigate the maps’ partisan bias upfront, before they reach judicial review. But once they do, the GOP’s odds of securing favorable rulings for its gerrymanders has shot up dramatically due to a new conservative justice. 

“I suspect the political tricks to undermine democracy will go the distance,” said Desiree Tims, the head of Innovation Ohio, a progressive organization that lobbies for fair maps and is part of Ohio’s Equal Districts coalition. “The redistricting process should unfold in a democratic way, which has not been our experience in Ohio.” 

Joe Deters, the new justice who shifts the high court to the right

Two days before Christmas, Republican Governor Mike DeWine filled a vacancy on Ohio’s supreme court by appointing Joe Deters, the tough-on-crime prosecutor of Hamilton County (Cincinnati) who is close to the state’s GOP power brokers. “Joe Deters has the right combination of experience, legal knowledge, and passion for public service that will serve the citizens of Ohio well,” DeWine said. Deters was sworn-in this past Saturday, just a week after Justice Maureen O’Connor, one of the court’s anti-gerrymandering crusaders, was forced to retire due to her age. 

The switch greatly alters the court’s ideological balance and likely flips it into a majority willing to uphold Republican gerrymanders.

“It suggests that the minority will become the majority, and there will not be the check on the mapmakers that there was during the 2021-2022 mapmaking,” said Catherine Turcer, who leads Common Cause Ohio, a voting rights organization, about Deters’s arrival on the court.

Katy Shanahan, who last year worked as the Ohio state director of All On the Line, an anti-gerrymandering group, agrees. “Now the state supreme court has an ultraconservative four to three majority, which to me signals that [Republicans] will get a greenlight on whatever they want to pass,” she said. 

O’Connor, a Republican, sided with the court’s three Democratic justices last year in a series of rulings that invalidated the congressional and legislative maps adopted by the GOP-controlled Ohio Redistricting Commission because they “unduly favored” the Republican Party in violation of the state constitution. The three other Republican justices voted to sustain the maps but they were on the losing side of the repeated 4-3 decisions. 

“When the dealer stacks the deck in advance, the house usually wins,” the majority wrote in January 2022, in the decision that struck down the GOP’s first congressional map. Over and over again after that—the court invalidated congressional and legislative maps in seven separate rulings between January and July—the justices faulted Republican map-drawing for packing Democratic voters into just a few districts while also cracking diverse urban areas to dilute their representation.

Still, Republican lawmakers ignored the court’s rulings and ran out the clock by passing an endless stream of gerrymanders; eventually, a federal court allowed a set of maps drawn by the GOP to be used in the 2022 midterms only, helping solidify Republican supermajorities. And with a new round of redistricting now looming, last year’s court majority has unraveled: O’Connor reached the mandatory retirement age, Republican incumbents swept November’s supreme court races, and DeWine added a political ally—Deters—to the court. 

Deters has no track record on matters that involve redistricting: He has worked as a prosecutor for much of the past forty years, with the exception of a brief, scandal-tarred stint as state Treasurer in the early 2000s. But many state observers told Bolts that they harbor little uncertainty over how Deters will approach those cases. 

That’s in part due to Deters’s personal proximity to Mike DeWine, the governor, and to Pat DeWine, the governor’s son and a justice on the state supreme court. Besides donating to the DeWines, Deters has exchanged favors with the family. In 2017, Pat DeWine asked Deters to give his college-aged son an internship in the prosecutor’s office and Deters obliged, as Cincinnati’s City Beat reported at the time. 

Deters and Pat DeWine faced ethics complaints and calls for investigation over this internship, but Deters defended the arrangement, insisting it was proper for him to do a favor for a friend.

Now, the two friends will sit on the supreme court together, called upon to decide the fate of initiatives that Mike DeWine is involved in. Last year, Pat DeWine voted to uphold the gerrymanders of Ohio’s redistricting commission, even though his father is a member of the panel, voted to approve the maps, and has said that he believes the maps passed constitutional muster; Pat DeWine rejected calls that he recuse himself from last year’s cases.

Critics of the state’s redistricting process say all of these intricate relationships will now affect the fate of upcoming legal disputes over district boundaries.

“Mike DeWine knows exactly who he’s appointing to that court. You’re not going to waste a political appointment, given the stakes of, among other things, the redistricting process to someone who you don’t know for sure how you think they should vote on those issues,” said Shanahan. “I think anyone suggesting otherwise doesn’t understand politics.” 

“Joe Deters will not be like Chief Justice Maureen O’Connor,” she added.

Deters’s record on criminal justice also reveals a very different outlook than O’Connor brought to the court. Last year, O’Connor sided with Democratic justices in a case that lightly reformed the state’s bail system but provoked fierce backlash from state Republicans. Deters responded by fueling a conservative counter-offensive against bail reform, which resulted in a constitutional amendment that expanded pretrial detention in November.

Deters has long cultivated this tough-on-crime persona, including on issues that the court will likely confront in the future, from calling a group of defendants in a 2015 case “soulless and unsalvageable” to staunchly championing the death penalty.  

“What we always hope for the courts is that party labels don’t matter, and that was certainly the case with Maureen O’Connor,” Turcer said. “But I think it’s very important that we be realistic about that as well.”

Jason Stephens, the new speaker who may introduce some uncertainty into redistricting 

Some Ohio politicians did defy partisan expectations last week just a few blocks from the supreme court, in the state capitol. 

Largely sidelined in recent years, Democrats injected themselves into legislative proceedings when their House members coalesced with a third of the GOP caucus to elect Stephens as state Speaker. Stephens defeated the candidate who was expected to prevail, a very conservative lawmaker selected by most of his fellow Republicans.

The shock result led some Democrats and some anti-gerrymandering advocates to speculate that it may herald an “honest effort to get bipartisan maps,” as The Columbus Dispatch reported last week. 

“We are certainly encouraged to see a speaker that was chosen by members of both parties, and we hope that that bipartisanship will continue in creating district plans that truly serve the people,” Jen Miller, head of the League of Women Voters of Ohio, told Bolts. 

But no concrete promise has been reported between Stephens and Democrats on redistricting or any other issue. Allison Russo, the chamber’s Minority Leader, did not reply to a request for comment on whether Stephens made any commitments in exchange for Democratic votes. 

Stephens’s office also did not reply to requests for an interview. 

The new Speaker himself has a broadly conservative record as a legislator, including supporting new restrictions on abortion and voting for a legislative package that restricted ballot access in December. That package, which was signed into law by Mike DeWine last week and has been strongly denounced by voting rights groups, restricts the availability of ballot drop boxes, eliminates a day of in-person early voting, and makes the state’s voter ID requirements more burdensome by disallowing some forms of identification, among other changes. 

A number of advocates interviewed by Bolts cautioned that they had no high hopes for Stephens’s leadership. Even if he were to be interested in toning down gerrymandering, they said, he has his work cut out for him given the recent records of Ohio’s other Republican officials.

“I’m cautiously pessimistic about a deal between the Ohio Democrats and Republicans,” said Tims. “The Republicans have shown us their hand every single time throughout the process. It has never been a fair shake.”

“It’s a little hard to not feel like we’re just in another Lucy and the football moment,” Shanahan said about Stephens securing a promotion thanks to Democrats. “I hope that we’re not, I hope Lucy does hold down that football…, I hope that what comes out of this is positive movement away from the fringe extremes that our state legislature has been residing in for years. I’m skeptical, but I hope to be proven wrong.”

The upcoming map-drawing will be handled by the redistricting commission, a panel made up of the governor, auditor, and secretary of state—all of whom are currently Republicans—plus four members that represent the four legislative leaders in each chamber. (The leaders typically serve on the commission themselves.) That means that, even if Stephens were to resist aggressive proposals, there would be four other Republicans on a seven-person body.

Those include Matt Huffman, the state Senate President who played a lead role in ramping up the scope of gerrymandering last year, and Frank LaRose, the secretary of state who last year floated impeaching O’Connor from the state supreme court over her redistricting rulings.

But Stephens is still in a position to at least change last year’s dynamic, if not soften the maps, if he so chooses.

Ohio’s outgoing Speaker Bob Cupp played a very aggressive role in 2022 in controlling the mapmaking and in boxing other officials out of much of the process; legislative leaders wield special influence, especially over how their own chamber’s lines are redrawn. Turcer, who described herself as “guardedly optimistic” about the new Speaker, also floated the possibility that Stephens may at least make the redistricting process more transparent. 

“This is a systemic problem”

Several Ohio advocates told Bolts that their strongest hope about Stephens was that his bipartisan win may at least kill a controversial change to the state’s referendum process—one that would make it harder to change the redistricting process in the first place.

Late last year, Republicans floated increasing the threshold of passage for citizen-initiated ballot measures from 50 to 60 percent. That would make it far harder for independent groups to secure wins over policies that the legislature fiercely opposes, such as abortion protections. The idea did not pass the legislature in late 2022, leaving a path—for now—for redistricting reform.

Miller of the League of Women Voters and Turcer of Common Cause Ohio each said that their groups were exploring how to champion a new citizen-initiated ballot measure in Ohio to implement an independent redistricting commission, like the ones used in Arizona and Michigan. But neither committed to a timeline for such a push. 

In 2015, voting rights groups championed an amendment that put in place the system in use now but Republicans weaponized it in ways that advocates say was unintended. One of the components of that reform was that a map would only be in place for four years, rather than the usual ten, if it failed to gather bipartisan support; it turned out that Republicans in passing their 2022 maps did not care about this constraint, which in fact only gave them the opportunity to refine their lines more frequently. As a result, and no matter what happens in the run-up to 2024, Ohio will yet again need to draw new maps in the lead-up to 2026.

“At some point, there’s an insanity in doing the same thing over and over again,” Turcer told Bolts. “It’s not a matter of new tools—community mapping, citizen engagement, all the different ways that voters can show how their district is manipulated. We’ve tried all that. At this point, we need to actually take the elected officials out of the equation and put this in the hands of an independent insulated citizens commission.”

Federal Democrats mulled institutional protections against gerrymandering when they controlled Congress in 2021 and 2022, but those did not pass due to several senators’ opposition to changing the U.S. Senate’s filibuster rules. “HR1 would have solved a lot of these problems,,” said Tims, referencing the federal legislation, “and because of that failure, voting rights and democracy continue to erode in statehouses across the country.”

“These folks are drunk on power, essentially,” Turcer said of politicians in charge of drawing the maps that keep them in power. “And what do you do with drunks? You take away their keys.”

The post In Ohio’s Redistricting Redo, a New Justice and a New Speaker Will Steer the Ship appeared first on Bolts.

Five supreme court seats are up for grabs this year across North Carolina and Ohio, and the results may once again open the gerrymandering floodgates in both states.

The rulings that struck down GOP gerrymanders in each state hang on narrow 4-3 majorities that are now highly vulnerable to flipping. To preserve the status quo, Democrats must sweep both seats on North Carolina’s ballot. In Ohio, they must win at least one of three races, possibly two. Republicans are jumping on the opportunity, in what is shaping to be a favorable cycle for them.

“We must focus on battleground state Supreme Court elections because so many redistricting fights are won and lost there,” former New Jersey Governor Chris Christie tweeted on Feb. 26, specifically naming North Carolina and Ohio. Christie is the co-chair of the National Republican Redistricting Trust, a group that aims to maximize the GOP’s redistricting advantage this decade.

Dee Duncan, the president of the Republican State Leadership Committee (RSLC), a national group that aims to win state-level elections, said the RSLC would be “spending more on state court races in 2022 than ever before.” The RSLC spent more than $5 million on judicial races in 2019 and 2020 alone, according to a recent report by the Brennan Center for Justice.

Democratic groups like the National Democratic Redistricting Foundation have also contributed money in judicial elections in recent years. But so far in Ohio, the GOP is far more mobilized. The three Republican candidates for the state’s high court have raised more than $1.1 million combined as of January, compared to the three Democrats raising under $190,000, six times less. The numbers were more equal in North Carolina, with a slight advantage for the Democratic candidates as of the end of 2021.

David Pepper, the former head of the Ohio Democratic Party, told Bolts that he thinks national Democratic leaders “should go all in to win these supreme court races.” 

During Pepper’s tenure as party head between 2015 and 2020, Ohio Democrats flipped three supreme court seats, and redistricting played a major role in their messaging. When Democrat Jennifer Brunner won a supreme court election in 2020, her campaign sent her supporters an email with the subject line, “It’s official – we broke gerrymandering in Ohio.”

Those wins gave Democrats three of the court’s seven seats. Republican Chief Justice Maureen O’Connor, who had signaled her distaste for gerrymandering ten years ago, joined them in a string of rulings this year to make up a fragile majority that struck down the GOP-drawn maps.

“Gerrymandering is the antithetical perversion of representative democracy,” the court wrote. “When the dealer stacks the deck in advance, the house usually wins.” It ruled that the GOP-drawn maps did not conform to a constitutional amendment voters approved in 2015 to require fairer districts. Republicans on the Ohio Redistricting Commission have argued that the new constitutional standards of fairness are only “aspirational,” not mandatory, a claim that the court majority rejected.

But O’Connor, who is barred from running for re-election this year because of her age, won’t be on the court much longer. Her departure deprives Democrats of a rare Republican ally and forces them to win at least one of three seats on the ballot this year to compensate. 

“With the retirement of the Chief Justice, it is imperative that a fourth justice that believes strongly in democracy is elected,” Terri Jamison, a lower-court judge and one of the Democratic candidates for supreme court, says on her campaign website, explicitly referencing the redistricting rulings.

But the chief justice race is likely to produce a new Republican justice no matter who wins because of who jumped in the election on the Democratic side. The only Democratic contender is Brunner, who is a current associate justice; she will face another associate justice, Republican Sharon Kennedy. Governor Mike DeWine, a Republican who signed the state’s latest gerrymanders, is favored to win re-election, will probably replace whoever wins, so even if Brunner becomes chief justice, her current seat will likely flip into GOP hands. 

This means that, unless DeWine ends up appointing a Republican who bucks their party like O’Connor did, Democrats need to win one of the other two elections on the ballot in order to preserve the court’s latest redistricting rulings. Both involve ousting incumbents.

In addition to the open race for O’Connor’s seat, two Republican justices who opposed the court’s anti-gerrymandering rulings are up for re-election, Pat Fischer and Pat DeWine, the son of Ohio Governor Mike DeWine. Fischer now faces Jamison, and DeWine is challenged by Marilyn Zayas. (Neither Zayas or Jamison responded to requests for comment.)

Pepper says it nevertheless helps Democrats to have Brunner on the ballot, because she will boost the rest of her ticket. He argues that Brunner, who is a well-known former secretary of state, can appeal to moderate voters like O’Connor did. As partisan elections are often swept by one party, the idea goes, lifting the party’s fortunes in one race strengthens Democrats in the others. 

Ohio Republicans changed election rules last year to add candidates’ party on the general election ballot. In the past, partisanship was not included for judicial candidates, and Republicans, who were reeling from their losses in 2018 and 2020, thought that this helped Democrats prevail in this red-leaning state. 

In other states where courts have struck down GOP maps, Republicans are similarly looking to change election rules. The GOP cannot gain a majority on the Pennsylvania Supreme Court until 2025, for instance, but it is toying with a constitutional amendment that would change the way the state’s justices are selected.

In targeting the rules of judicial races, Republicans are borrowing from the North Carolina GOP’s playbook. Lawmakers there made supreme court elections partisan starting in 2018, and repeatedly tried to manipulate the electoral process. Despite the legislature’s efforts, Democrats have maintained a majority on the court for the last few years. 

The North Carolina Supreme Court split along party lines on redistricting this year. Four Democrats voted to strike down; three Republicans voted to uphold. But two of those Democratic seats are now up for grabs, and Republicans need to win just one to have a majority next year. (In 2020, they swept three elections in the state, winning one seat by only about 400 votes.) 

Republicans now have a shot at an open seat since Justice Robin Hudson, a Democrat, is retiring. Democrat Lucy Inman and Republican Richard Dietz, both lower-court judges, are facing off to replace her. In the second election, Democratic Justice Sam Ervin IV will face one of three Republicans—attorneys Trey Allen and Victoria Prince, and April Wood, a lower-court judge—who did not reply to requests for comment. 

In exchanges with Bolts, Dietz and Inman each declined to share their views on redistricting, saying they would not comment on possible future cases. Both campaigns have faulted the other party for politicizing judicial elections. 

Still, prominent North Carolina Republicans have signaled that they expect that a GOP supreme court majority would give them more leeway in upcoming years. 

“Just a reminder that whatever Congressional maps are used this year can be revised next (and every) year by @NCGOP General Assembly which may have a GOP Supreme Court Majority,” Dallas Woodhouse, the former executive director of the state Republican Party, tweeted on Feb. 4, the same day the state supreme court struck down his party’s maps.

Following that ruling, lawmakers drew new legislative districts, and the supreme court imposed a new congressional map drawn by a bipartisan panel of three experts, all former judges. The GOP’s original map, which was struck down by the supreme court, would have given the GOP 10 of the state’s 14 seats. The new map has at least six Democratic-leaning seats.

But this fairer congressional map will only be in place for one election. There will be another round of congressional redistricting after the midterms that will determine the fate of multiple U.S. House seats, and it’s the new state supreme court elected in 2022 that will review the new districts.

The new legislative districts are more likely to last, because the state constitution says they “shall remain unaltered” until the next census. To pull off mid-decade legislative redistricting, state lawmakers would have to convince the high court to circumvent that ban.

Continued fights over redistricting are also guaranteed in Ohio. That’s because, if maps fail to garner bipartisan support, they are only operative for four years. The GOP has pushed maps all on its own, though they are currently locked in a stalemate with the court, which sets up a next round by 2025-2026. The latest congressional map drawn by the GOP there gives the party at least 11 of 15 districts, and the high court is reviewing it.

Republicans have a plan even if they fail to secure more favorable judges in North Carolina and Ohio: get the U.S. Supreme Court to silence state courts.

They are invoking a theory known as the independent state legislature doctrine, which holds that state lawmakers have carte blanche on redistricting and other election-related matters, free from any judicial review. The U.S. Supreme Court has so far sidestepped the doctrine, but four of its conservative members have signaled they are open to it. 

Republicans say courts are the ones guilty of gerrymandering and of usurping the authority of lawmakers. The RSCL recently criticized Democrats for resorting “to state courts to change the rules,” and it vowed to “keep redistricting in the hands of the people.” But the state lawmakers of North Carolina and Ohio, who according to a growing number of conservatives should have sole discretion over redistricting, spent most of the last decade easily maintaining their majorities through heavily gerrymandered maps.

Kennedy, the Republican judge who could become Ohio’s chief justice in November, recently signaled conservatives’ determination to capture the court and undo its recent rulings. At a dinner hosted by a county Republican Party, she called redistricting “the fight of our life.”

The post Supreme Court Elections May Re-Open Gerrymandering Floodgates in Two Key States appeared first on Bolts.

The U.S. Supreme Court signaled on Monday that at least four justices are ready and willing to bless a legal theory that was never really taken seriously until the 2020 elections. The so-called independent state legislature doctrine, if adopted, would provide new legal cover for Republicans to use their vast powers in states to subvert elections, shield aggressive gerrymanders, and restrict access to the vote in Democratic strongholds at the local level.

Their feverish idea is that state legislatures should have complete and unfettered control over how federal elections are run and regulated, shielded even from the oversight of state courts. Against the backdrop of efforts by President Donald Trump’s supporters to reverse the last presidential election and prepare for the next one, the doctrine would give carte blanche to Republican-run legislatures in swing states like Georgia and Wisconsin, which the GOP has gerrymandered, to ensure it never loses.

In 2020, Texas and other Republican-led states implored the Supreme Court to block certification of the presidential election results in key states like Pennsylvania that Joe Biden won. They claimed that those states had flouted the Constitution and past legal precedents purportedly making it clear that “a single branch of State government”—that is, the state legislature—has the authority to set the rules governing the appointment of presidential electors. Because “executive and judicial officials made significant changes to the legislatively defined election laws in the Defendant States,” Texas insisted, these states had violated the Constitution’s Electors Clause and Elections Clause. 

As Texas and its allied states see things, these clauses teach that only a state’s legislature may establish or modify the rules governing who elects the president and other federal offices. All other state “non-legislative actors,” like courts or election administrators, must abide by those rules. 

The Supreme Court rejected their plea at the time without opining on the merits. Weeks later, the Jan. 6 insurrection on the Capitol attempted by brute force what the justices wouldn’t do through the force of law.

But Republicans did not move on. Quite the opposite: The independent state legislature doctrine has continued to metastasize and grow legs and gain traction in GOP politics. Last month, Kansas Attorney General Derek Schmidt cited it to try to quash a lawsuit challenging a partisan gerrymander that threatens the congressional district of Democratic Rep. Sharice Davids. “The Elections Clause commits the redistricting power to state legislatures, and no Kansas law—either statutory or constitutional—gives the state courts any role in evaluating the validity of duly enacted redistricting plans,” his office wrote.

Also in February, angered by a North Carolina Supreme Court ruling that struck down their aggressive gerrymander, and by the Pennsylvania Supreme Court’s work in drawing a new map for its state, Republicans appealed to the U.S. Supreme Court and invoked the independent state legislature doctrine. These courts should not have the authority to intervene in how the GOP-run legislature wants to draw maps and set timetables for the elections, they said.

The U.S. Supreme Court declined to intervene on Monday. But its more conservative members, led by Justice Samuel Alito, signaled loud and clear in the North Carolina case that they are open to affirming the supremacy of state legislatures in election administration. 

“This case presents an exceptionally important and recurring question of constitutional law, namely, the extent of a state court’s authority to reject rules adopted by a state legislature for use in conducting federal elections,” Alito wrote in a dissenting opinion joined by Justices Clarence Thomas and Neil Gorsuch. “There can be no doubt that this question is of great national importance.”

Alito took issue with the North Carolina Supreme Court for approving a map that the state’s General Assembly opposed. “And if the language of the Elections Clause is taken seriously, there must be some limit on the authority of state courts to countermand actions taken by state legislatures when they are prescribing rules for the conduct of federal elections,” he wrote.

In a separate opinion, Justice Brett Kavanaugh agreed that the U.S. Supreme Court needed to settle the matter once and for all. “The issue is almost certain to keep arising until the Court definitively resolves it,” he wrote. In predicting that such a dispute would be on the court’s docket sooner rather than later, he effectively invited lawmakers in other cases to continue invoking the doctrine

Amy Coney Barrett didn’t add her name to anything. She is the only conservative justice who hasn’t yet telegraphed her position on theory, giving her the keys to the future of U.S. elections. 

And just like that, what once seemed like an esoteric doctrine, now fueled by Trump’s plans for a coup, has gained steam and legitimacy, despite a long line of prior Supreme Court cases rejecting it and Founding-era evidence that the theory is bunk.

As voting rights advocates put it in their brief defending the new North Carolina plan, the doctrine “flouts a century’s worth of this Court’s precedents,” some of them only a few years old. One such case, Rucho v. Common Cause, decided in 2019, was otherwise dispiriting to voting rights advocates because it rejected the view that federal courts have authority to adjudicate partisan gerrymandering claims. But that same conservative majority, which included Gorsuch and Kavanaugh, also assured voting rights advocates that they could at least turn to state courts. “Provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply,” the court said. In other words, the conservative justices made it clear at the time, perhaps to make the bitter pill of their broader ruling easier to swallow, that legislatures don’t have free reign to do as they please. They are dependent on their own state constitutions, which may require free and fair elections, give the governor a say, guarantee equal protection of the laws, and are subject to judicial checks. 

In a forthcoming paper that examines how the framers of the Constitution understood the role of state legislatures, law professors and brothers Akhil and Vikram Amar are also adamant that the independent state legislature doctrine has no basis in originalism. “Indeed, at the Founding, the ‘legislatures’ of each state to which Articles I and II refer were, as a general matter far from free agents,” they write. Their work only adds to a growing body of scholarship discrediting the doctrine.

None of this may matter for the U.S. Supreme Court in the end if Amy Coney Barrett sides with her conservative colleagues in a future case. The court didn’t note the grounds for turning away the redistricting case on Monday, but it’s plausible that it did so because we are now too far along in the electoral calendar to alter the rules of the midterm elections in that state. And it left the door open to consider and potentially affirm the doctrine in future cases.

As it stands, Republican officials, including those who supported Supreme Court intervention in the outcome of the 2020 election, are undeterred in invoking it throughout the country. 

If they succeed, it could shut down a path that civil rights groups have increasingly turned to as the federal judiciary has veered sharply to the right. State constitutions provide protections that state supreme courts like North Carolina’s and Pennsylvania’s have flexed. In both states, Democrats won key judicial elections to secure majorities willing to do so.

But a suddenly operative independent state legislature doctrine would throw that paradigm out the window. It would weaken state supreme courts’ ability to intervene in election cases. It could be invoked to strike down independent redistricting commissions. And Republican lawmakers could wield it to restrict voting measures in Democratic-led cities and localities wishing to make it easier for their residents to vote.

All told, legitimizing the doctrine strengthens Trump’s hand in the run-up to 2024, undermining many of the remaining checks against his efforts to undercut democracy. Alito and the other justices are granting a veneer of legal respectability to the kind of power grab the former president attempted in 2020 and may again in two years.

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