By Fredreka Schouten
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The US Supreme Court kicked off its new term this week and will hear two cases this year with potentially significant implications for voting rights and the conduct of future elections.
The first, being argued Tuesday, centers on whether a congressional map drawn in Alabama illegally diluted the power of the state’s Black voters. But it could result in the conservative majority on the high court scaling back the scope of a key section of the 1965 Voting Rights Act.
The second case, out of North Carolina, also focuses on redistricting, but it could alter how elections are run if the justices go along with an aggressive interpretation of a theory on the power of state legislatures to set election rules.
“The stakes are huge,” depending on how broadly the high court rules in these cases, said Rick Hasen, an expert on election law at UCLA’s law school and director of the Safeguarding Democracy Project.
Here’s a look at each:
Merrill v. Milligan, the Alabama case being heard Tuesday, springs from a redistricting dispute and sets up a new test of the Voting Rights Act in a court that already has chipped away at the landmark law in recent years.
At issue: congressional representation in Alabama, where about 27% of the voting-age population is Black. A lower court, relying on Section 2 of the 1965 voting rights law that prohibits discrimination in voting, struck down a map that made Black voters the majority in only one of seven congressional districts — or 14% of the state’s representation in Congress.
That court ordered the state legislature to create a second majority Black district.
But the Supreme Court earlier this year reinstated the legislature’s original map while the case moves forward. The court’s decision to hear the case has raised the specter that it might be willing to further reduce the role of race in drawing districts in federal elections.
State officials in Alabama, relying on previous Supreme Court rulings that already have limited the use of race in redistricting on constitutional grounds, have argued that the state should only be required to create majority-minority districts in instances in which taking a race-neutral approach also would have produced those results. (Our CNN colleague Tierney Sneed delved into this argument and others surrounding redistricting earlier this year.)
If the court erodes Section 2’s power in redistricting cases, that “would lead to many fewer congressional and state and local legislative districts in which minority voters may be able to elect their preferred candidates to office,” Hasen said in an email about the broad implications of the case.
In Moore v. Harper, as the North Carolina case is known, a lower court struck down a congressional map drawn by the Republican-controlled legislature as an illegal partisan gerrymander and instead approved a map more favorable to Democrats.
Republicans in the state legislature want the US Supreme Court to reverse that ruling and adopt a theory that could curtail the ability of state courts to review whether new voting laws comply with state constitutions. The proponents of eliminating or reining in the powers of state courts cite the “independent legislature doctrine” — an obscure legal theory advanced by some allies of former President Donald Trump that’s viewed by many experts as a fringe and extreme idea.
But, as CNN’s Ariane de Vogue wrote recently, many Republicans are heartened that the conservative-leaning high court has decided to weigh in on the issue. Three Supreme Court justices appointed by GOP presidents — Samuel Alito, Clarence Thomas and Neil Gorsuch — have “expressed some sympathy” for the theory in earlier stages of the case, she wrote.
If the high court goes along with an aggressive interpretation of the independent legislature theory, it could deliver enormous powers to GOP lawmakers in battleground states to establish new rules for voting — unfettered by fears that state courts would overturn those efforts.
Critics of the independent legislature theory have said they are hopeful that high court won’t go that far and point to an array of briefs filed that make the case for robust state court oversight of federal election matters.
A date for arguments has not yet been set, but the case is likely to be heard in November or December.
You can read Ariane’s full preview of the court’s new term here.
Voter registration deadlines loom
In more than half the states, new voters must register before Election Day to cast ballots in next month’s general election. The first deadlines are fast approaching — with Alaska and Rhode Island setting an October 9 voter registration deadline.
You can check the deadlines to register with the nonprofit Vote.org. The Washington Post also has a user-friendly tool that allows voters to see, at a glance, the voter registration deadlines in their states.
Electoral Count Act
We’ve written several times about the arcane 19th century law that governs how Congress counts electoral voters for the presidency and efforts to rewrite it prevent another January 6, 2021, insurrection.
The overhaul got a big boost last week with the endorsement of Senate Minority Leader Mitch McConnell, the chamber’s top Republican. And the bill has enough GOP support to overcome a filibuster in that chamber.
Some Republicans remain opposed — most notably Texas Sen. Ted Cruz. Cruz was the sole member on the Rules Committee to vote “no” when lawmakers on the panel advanced the bill out of committee last week. It’s not clear when the bill will go to the full Senate for a vote.
A breakthrough in Michigan
Michigan’s Republican-controlled legislature and Gov. Gretchen Whitmer, a Democrat, have reached a deal to give election clerks more time to begin pre-processing absentee ballots, as the Detroit Free Press and other Michigan outlets report.
Clerks will be able to begin processing, but not counting, absentee ballots two days before Election Day.
This might seem a bit wonky, but it’s an important step in delivering fast election results in this battleground state and could cut down on some of the post-election drama witnessed in 2020.
Clerks have clamored for additional time since the crush absentee ballots two years ago slowed counting and created a vacuum for candidates and conspiracy theorists to begin making false claims about the election outcome.
Meanwhile, in Maryland, judges have cleared the way for election officials to begin counting mail-in ballots before Election Day.
You need to read
- This story by CNN’s Steve Contorno on election deniers gaining access to the highest levels of Florida Gov. Ron DeSantis’ administration — even as the Republican stays quiet publicly about the 2020 election.
- This piece on the US Supreme Court allowing Dominion Voting Systems’ defamation lawsuit against MyPillow CEO Mike Lindell to proceed.
- This scoop from CNN’s Sean Lyngaas on election workers to being trained by the feds on how to deal with violence at the polls.
- This VoteBeat story on how two Trump allies are probing local election officials in a coordinated, multi-state effort. We wrote last week about the financial backing of these allies for a slew of voter challenges brought recently in Georgia.
- This Atlanta Journal-Constitution story on a judge upholding Georgia’s election laws, ending a long-running case brought by Fair Fight Action — a group founded by Stacey Abrams, the Democratic nominee for governor. She faces Republican Gov. Brian Kemp in a rematch of their 2018 battle.
- My piece on how officials in hurricane-battered Florida are scrambling to deal with the fast-approaching midterms. Do you live in Florida and are concerned about how to vote? This linkincludes deadlines for all voting activity, include the October 29 deadline to request an absentee ballot — one voting option for residents displaced by Hurricane Ian.
CNN’s Shania Shelton contributed to this edition.
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