Voting rights advocates entered June of 2023 with serious, and understandable, trepidation.
Two major cases were teed up at the U.S. Supreme Court, one (out of Alabama) involving a critical section of the Voting Rights Act, the other (North Carolina) threatening to eliminate the most robust remaining check (independent state courts) on gerrymandered legislatures around the country.
A loss in just one of these two cases would deal a major defeat for voting rights.
A loss in both would deal a true body blow to American democracy.
The swing justices in the cases appeared to be Chief Justice Roberts and Justice Kavanaugh. Which also didn’t bode well.
Justice Roberts had authored the Shelby County decision in 2013, and had spent his young days as a lawyer fiercely lobbying against the very provision of the Voting Rights Act that was at stake in the Alabama case. And both Roberts and Kavanaugh were part of the 5-4 majority in the Brnovich case, which had gutted another part of the Voting Rights Act only two years before.
If only one of those two sided with the four more reliably conservative justices, the 2023 term would end in disaster.
On June 8, the Court announced its decision in the Alabama case.
Three weeks later, the Court announced its North Carolina decision.
And Chief Justice Roberts indeed authored both decisions, joined by Kavanaugh.
But…joining them in both opinions were the three Democratic-appointed Justices. (Justice Amy Coney Barrett even joined him on the North Carolina case.) And it was the three other conservatives in dissent.
Which meant that despite all those understandable fears, those 5-4 and 6-3 majorities delivered two decisive victories for voting rights. Wins for democracy.
But…before we celebrate too much, each decision also came with a wrinkle.
And long-time Court watchers know that a wrinkle in one case (even amid victory) can grow to become law (and a major loss) in a future case. After all, that’s how we got Shelby County—when just a few phrases from a temporary victory a few years prior metastasized into the argument that crushed Section 5.
Class 22 of my Voting Rights Academy will look at these two pivotal 2023 cases, the surprising decisions and alliances that voting rights advocates cheered, and the wrinkles that caution us that more may be coming.
The Two Cases
Allen v. Milligan
After Shelby County gutted Section 5 of the Voting Rights Act, and after Brnovich gutted a key application of Section 2 of the Voting Rights Act (challenges to election rules and regulation), a case called Allen v. Milligan out of Alabama looked to be the final nail in the Voting Rights Act’s coffin.
Keep reading with a 7-day free trial
Subscribe to Pepperspectives to keep reading this post and get 7 days of free access to the full post archives.