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The Court after Scalia: Standing at the crossroads on voting rights

Richard L. Hasen is Chancellor’s Professor of Law and Political Science at the University of California, Irvine.

When it comes to jurisprudence on voting rights, the Supreme Court stands at a crossroads. If the Court ends up with a new liberal majority, it could limit the ability of states to pass restrictive voting rules such as voter identification laws, boost minority voting power in legislative and congressional districts under the Voting Rights Act, and continue using the constitutional racial gerrymandering cause of action to protect minority opportunity districts.

A new conservative majority would be more likely, although not certain, to allow states greater leeway to pass laws which make it harder to register or vote, limit minority voting power in legislative and congressional districts under the Voting Rights Act (perhaps even holding Section 2 of the act, which gives minorities a greater share of political power, unconstitutional), and retool the constitutional racial gerrymandering cause of action to make it harder to draw minority opportunity districts.

Voter identification and the voting wars

The Supreme Court has weighed in twice with opinions on voter identification laws, although there will soon be opportunities for the Court to weigh in once again.

The first case the Court decided, Purcell v. Gonzalez, resulted in a short per curiam opinion reversing a Ninth Circuit stay of Arizona’s implementation of its voter identification law pending a full trial on the merits. The Court did say that such laws might prevent voter fraud and instill voter confidence, but the case is mostly thought of as one about election timing. Under the Purcell Principle, courts should be wary of making changes to election rules in the period before the election, because such changes may confuse voters and make life difficult for election administrators.

In the 2008 case of Crawford v. Marion County Election Board, the Court split three-three-three over a facial attack on Indiana’s strict voter identification law under the Constitution’s Equal Protection Clause in the Fourteenth Amendment. The three most conservative Justices (Samuel Alito, Antonin Scalia, and Clarence Thomas) rejected the argument that such laws were unconstitutional, ruling that if the law was a minor burden for most voters it was constitutional even if it imposed heavier burdens on a smaller class of voters. The narrower plurality opinion (Chief Justice John Roberts and Justice Anthony Kennedy and John Paul Stevens) agreed the law was constitutional because it appeared to burden most voters only slightly. But these Justices left open the possibility that voters facing special burdens could be entitled to as-applied exemptions to the law. Three dissenting Justices (Stephen Breyer, Ruth Bader Ginsburg, and David Souter) argued that the law burdened many voters, and it was not justified by any state interest, given that the state failed to prove the law was necessary to prevent voter fraud or promote public confidence in the election process.

After Crawford, and after the Court’s 2013 opinion in Shelby County v. Holder, which in striking down a part of the Voting Rights Act freed states with a history of racial discrimination in voting from having to get approval before making further changes to their voting rules, states with Republican legislatures began enacting more restrictive voting rules. These laws included stricter voter identification laws, limits on the counting of provisional ballots, and rollbacks in voting convenience measures, such as generous early voting periods. Some of these new laws led to lawsuits, many of which reached the Court on an emergency basis before the 2014 election. The Court seemed to put the Purcell Principle in play in handling the emergency motions in 2014, which led the Court to block Wisconsin from implementing its new voter ID law but to allow Texas to continue using its law, even though federal district courts had found both laws unconstitutional and violations of Section 2 of the Voting Rights Act.

Those cases from 2014 are now working their way up the appellate ladder after final adjudication on the merits, with some soon landing at the Court. The first up on the merits will likely be North Carolina’s cert. petition challenging a Fourth Circuit decision striking down portions of North Carolina’s law on the ground that North Carolina enacted it with a racially discriminatory purpose. Texas also may choose to bring to the Court a petition challenging the en banc Fifth Circuit’s holding that Texas violated Section 2 by passing its voter identification law with a racially discriminatory effect, and that the trial court should reconsider the question of discriminatory intent.

These cases and ones like them present a host of thorny legal questions: how does a court determine if a state passes a voting law with a racially discriminatory intent, in violation of both the Constitution and the Voting Rights Act, when race and party correlate so well, especially in the South? Can North Carolina defend itself by saying it had a partisan intent, even if the law had an effect on African-American voters who choose to vote for Democratic candidates? Under Section 2 of the Voting Rights Act, what is the proper test for determining whether a law making it harder to register or vote denies minority voters the same opportunity as other voters to participate in the political process and to elect representatives of their choice? To what extent may a state’s cutback in voting convenience such as more limited early voting be a Voting Rights Act violation when other states have never offered the convenience in the first place?

We do not know if the Court will take up these issues, and if it does we do not know how it is likely to resolve them. What we do know is that more conservative Justices tend to be skeptical of broad voting rights claims in these cases and more protective of state prerogatives in setting the rules for voting. Liberals tend to be more skeptical that the state has a legitimate interest in these laws, seeing them as a pretext for voter suppression, and more likely to believe the laws burden voters.

But firm predictions are hard to make: during the conservative Roberts Court period, the Court did not go as far as it could have in adopting a conservative vision for voting rights. And in the lower courts, ideological and partisan breakdown is not a perfect predictor of how these cases are likely to be decided. The Fifth Circuit is still a majority-conservative court, yet it voted nine to six in favor of the voting rights plaintiffs in the Texas voter ID suit. Further, even judges who have supported the legality of voter identification laws in the past, such as Judge Richard A. Posner of the Seventh Circuit and Justice John Paul Stevens, now retired from the Supreme Court, now have doubts following a decade’s experience with the laws. Both voted to uphold Indiana’s voter identification law in Crawford (Posner on the Seventh Circuit; Stevens on the Supreme Court), but both now see the law as a means of suppressing the votes of those voters likely to vote for Democrats.

Minority voting rights and districting

When it comes to race and redistricting, the Supreme Court has weighed in many times, construing the standards for judging minority vote dilution under Section 2 of the Voting Rights Act beginning with the 1986 case of Thornburg v. Gingles.

In recent years, the Court has read Section 2 of the Voting Rights Act more narrowly, rejecting more expansive readings which would require jurisdictions to draw more districts in which minority voters would have a chance for influence. The Court has also limited the ability to create minority opportunity districts when doing so would require bringing together minority voters from different cultural or economic areas within a state.

On these issues, liberal and conservative Justices are likely to diverge, just as the Court diverged in the Shelby County case over whether federal supervision of voting is still necessary in parts of the country with a history of racial discrimination in voting.

While it is hard to see the right vehicle that could allow a liberal Court to overrule Shelby County, it is entirely possible that a liberal majority Supreme Court would be more willing to uphold a new coverage formula should Congress ever pass a renewed version of Voting Rights Act preclearance. Further, it is likely that a more liberal Supreme Court would soften some of the precedents reading Section 2 narrowly, allowing for the creation of more districts with greater minority voting power. In contrast, a more conservative Supreme Court could eventually rule that Section 2 itself is unconstitutional, leaving states more discretion to pack or crack minority voting districts.

The future of racial gerrymandering claims

Finally, the future balance of the Court may determine what the Court does with the racial gerrymandering cause of action, which originated in the Supreme Court’s 1993 decision in Shaw v. Reno. These cases began as a conservative effort to limit the ability of states and the U.S. Department of Justice to draw more minority opportunity districts under the Voting Rights Act. In more recent years, however, especially in the 2015 case of Alabama Legislative Black Caucus v. Alabama, the racial gerrymandering cause of action has become a tool for liberals and minority voters to stop Republican states from packing minority voters in a smaller number of districts.

Justice Kennedy’s vote with the four liberals has been key in this recent development of the law, and two cases on the upcoming Court docket, McCrory v. Harris and Bethune-Hill v. Virginia State Board of Elections, will reveal where the current Court is on this question.

In future years, when Justice Kennedy is no longer the deciding vote at the center of the Court, the racial gerrymandering doctrine may either grow or shrink in importance depending upon both the valence of the Court and the nature of the plaintiffs trying to use it to control the districting process and it relationship to minority voting rights.


Elections matter, and the Supreme Court’s composition matters to voting rights jurisprudence. The upcoming election will help determine the future of the Court, and the Court’s future will help determine the scope of voting rights for years to come.

Recommended Citation: Rick Hasen, The Court after Scalia: Standing at the crossroads on voting rights, SCOTUSblog (Aug. 30, 2016, 3:31 PM),