The Conservative Supreme Court Will Decide If Some Votes Are More Equal Than Others

The Supreme Court decided on Thursday that it will hear two election law related cases this term, the potential of redefining the meaning of free and fair elections.  North Carolina also asked the Supreme Court to Stay an injunction issued by the Fourth Circuit to reinstate same day registration and count votes that were cast out of district.

The first case is Arizona State Legislature v. Arizona Independent Redistricting Commission:

:In 2000, 56% of voters in Arizona supported a citizens’ initiative that would amend the state’s constitution to establish an independent redistricting commission.  The commission considers input from both political parties.  The legislature may approve or disapprove the maps resulting from the commission’s work.

The commission’s composition is complex.  First the commission on appointments, proposes candidates.  The legislature chooses to Republicans and two Democrats.  They choose an independent to chair the commission.  Political control is limited to the governor who can remove a member for neglect or misconduct.

Despite the best efforts to keep the partisanship out of redistricting, Republican Governor Jan Brewer fired the chair person because she often sided with the two Democrats.  Eventually, the state Supreme Court reinstated the chair, noting that agreeing with Democrats is neither neglect or abuse of office.

Republicans controlled the state’s Senate by 17-3 and the House by 36-24.  However, because voters denied Republicans a supermajority in the statehouse, Republicans protested the Commission’s maps for 2012.

Arizona’s Republicans want the Supreme Court to decide that redistricting must be decided by the legislature under the elections clause of the U.S. constitution.

Now the Supreme Court will consider if the legislature has standing in this case, and if the as Arizona Republican claim, if commission’s existence violates the U.S. Constitution’s elections clause.

America prides itself on a voting process in which every vote is equal, regardless of the voters’ race, gender, class or any other factor. The reality is redistricting makes it possible for Republicans to win even when they lose the popular vote.

In 2012, Democratic House candidates received nearly 1.4 million more votes than Republicans,  yet Republicans maintained control of the House as a direct result of gerrymandered redistricting.  If the Supreme Court sides with Republicans in this case, the inequality of votes will get much worse.

As noted by Think Progress notes, while this case runs in the face of several Supreme Court precedents, the Court’s ruling in Bush v. Gore could be used by conservatives on the court to make gerrymandering even worse than it is now.

Nevertheless, there are some warning signs that the Supreme Court’s right flank wants to upset this balance. In Bush v. Gore — yes, THAT Bush v. Gore — Justices Antonin Scalia and Clarence Thomas joined an opinion arguing that the Constitution prohibited Florida’s state courts from reaching certain interpretations of the state’s election law. This opinion relied on a constitutional provision providing that presidential electors must be selected “as the Legislature” of a state directs. Thus, it argued, the judicial branch of a state could not act in a way that these conservative justices viewed as counter to the legislature’s intent.

The Court is busy with vote suppression cases.

Today, North Carolina requested a stay of yesterday’s 4^th Circuit’s injunction to reinstate same day voter registration and out of precinct voting.

North Carolina makes two arguments which will probably appeal to the conservative wing of the Supreme Court.

First, North Carolina wants the Supreme Court to interpret Section 2 of the Voting Rights Act under the narrow parameters set out by Judge Thomas Schroeder.  While the Fourth Circuit looked at the cumulative effect of all restrictions (i.e. early voting, same day registration etc.) Judge Schroeder preferred a piecemeal approach.  For example, if you look at reduced early voting in isolation, it really doesn’t look that bad.  If you look at it with a ban on same day registration, discounting out of precinct votes and all the other restrictions in North Carolina’s law you can recognize the systematic effort to suppress votes by minorities through a variety of mechanisms. It’s likely the Supreme Court will prefer to avoid looking at the big picture.

Second, North Carolina is arguing that changing the law this late in the game is likely to create chaos.  This argument is based on precedent and is therefore likely to succeed.

The Court also decided to hear Wisconsin’s Voter ID case.  Some estimates say 300,000 Wisconsin voters could be disenfranchised if this law is upheld.  After the court decided to hear this challenge, Justice Elena Kagen asked the Wisconsin to respond.  The outcome of this case will effect voters in Wisconsin, but will also tell us about the future of voting rights in other states.

The totality of these cases means the Supreme Court will decide the new meaning of free and fair elections and if, indeed, some votes are more equal than others.

Image: Think Progress

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Adalia Woodbury

Former contributor.

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