In a 6-3 decision that fell along this conservative court’s usual ideological lines, the court upheld an Oregon city’s policy of doling out civil and criminal penalties to unhoused people who sleep outside even as the city lacked sufficient shelter. 

Unhoused plaintiffs had sued the city of Grants Pass in federal court, arguing that its camping ban violates the Eighth Amendment’s protections against cruel and unusual punishment. 

The six conservative justices on the Supreme Court, however, disagreed. “The Court cannot say that the punishments Grants Pass imposes here qualify as cruel and unusual,” Justice Neil Gorsuch wrote for the majority. 

In her dissent, liberal Justice Sonia Sotomayor accused her colleagues of criminalizing the very condition of being homeless. She called on the court to “prohibit punishing the very existence of those without shelter.”

The ruling overturns several decisions by the Ninth Circuit, which covers western states, including Oregon and California. In Martin v. Boise, the Ninth Circuit held in 2018 that cities cannot punish people for sleeping outside without providing adequate shelter options. The Ninth Circuit then reinforced that decision in 2022 when it struck down Grants Pass’ camping ban, siding with the plaintiffs. 

These rulings had put in place some protections from aggressive sweeps of homeless encampments in western states. But a vast suite of public officials, including many Democrats, asked the Supreme Court to lift those protections. The court obliged last week. 

Hours after the decision, Bolts held a roundtable discussion on what the ruling means with three people who have closely studied the effects of camping bans: Charley Willison,  an assistant professor of public health at Cornell University who studies public health and political responses to homelessness; Chris Herring, an assistant professor of Sociology at UCLA who has researched the criminalization of homelessness in liberal California cities; and Eric Tars, senior policy director at the National Homelessness Law Center, a national advocacy organization that filed an amicus brief in the Grants Pass case in favor of striking down the city’s policy. 

In a wide-ranging discussion, these three experts shared their worry that, even if the Grants Pass decision does not mandate any enforcement, it will only increase aggressive policing tactics against people experiencing homelessness instead of long-term solutions to a worsening housing crisis.

“One thing that does concern me is how much more significant rates of homelessness are now, compared to pre-pandemic,” Willison said. “How will elected officials proceed with this, when the crisis is so extreme?” 

Let’s get to the ruling: Is this a decision you were expecting?

Charley Willison: Unfortunately, I think probably for all of us in the room, this isn’t surprising. We know that cities have been using police to respond to homelessness through punitive civil and criminal penalties for a very long time, definitely for over a century, but becoming more formalized in recent decades. This ruling takes us back to the status quo of just allowing cities to be able to do this. 

Eric Tars: Many elected officials get boxed into non-solutions that are the most politically expedient because their constituents are asking for a quick fix response that can sweep individuals off a corner, using the threat of law enforcement or the enforcement of these laws. But because you’re not solving homelessness, for any of those people who are swept, they are just moved somewhere else and remain a problem. 

In the majority decision, Justice Gorsuch does cite all these claims by cities, that past cases somehow bind their hands and limit them in addressing homelessness. The Martin v. Boise decision, far from binding the hands of communities, actually opens up the policy discussion to solutions that actually work. 

It enables a good elected official to say, ‘Look, I agree with you, people should not be sleeping on that street corner. But the courts have told us, we can’t just sweep them away, unless we provide a better place for them to be. So let’s work together to get that solution that’s actually going to solve homelessness permanently, and is going to give both you as a housed constituent and those unhoused constituents a better result altogether.’ 

So communities lost a tool today to get us to the solutions that we actually need to end homelessness. And that’s disappointing and dangerous.

One of the key differences between Gorsuch’s majority opinion and Sotomayor’s dissent was over the question of whether the Grants Pass law was criminalizing the mere action of camping or, as Sotomayor denounced, whether it criminalized the status of being homeless. What do you make of this distinction?

Tars: No, there is really no distinction, as the dissent makes clear. One of the things that the dissent gets right, but the majority opinion deliberately gets wrong, is that this is not even a case where the rich and the poor of Paris are equally forbidden to sleep under the city’s bridges: This law only applies to people who are putting down blankets and sheltering themselves to form a temporary habitation. 

That means that if you have your own permanent residence and are just going out to enjoy the park, you can put down a picnic blanket, stargaze, whatever—and that’s fine. But if you are doing it because you have nowhere else to go, then the law applies to you and you are forbidden from doing it, and can be penalized for doing it. 

That’s why this does, in fact, criminalize only people who have the status of not having permanent housing or who are homeless. Despite the majority’s opinion, it was designed explicitly to be cruel to people experiencing homelessness.

Chris Herring: In the oral argument, there was a line of questioning to Grants Pass’ attorney asking, ‘Are there any cases of you giving tickets to say, a person passing through as a backpacker in town? Or anyone else who wasn’t actually homeless?’ They could not point to an example. So empirically, we know that the ticketing and this punishment was only also going to those who are unhoused. 

Let’s back up a bit and talk about how U.S. cities currently deal with homelessness. Why do so many places readily turn to police for enforcement of anti-homelessness statutes? What’s the history behind this? 

Willison: A huge part of the history of policing in the United States was about controlling public behavior for the benefit of politically privileged groups. During the 19th century, and through the 20th century, we saw explicit criminalization ordinances, quite similar to the ones we see today, start to be utilized by police departments to control the visibility of people who are sleeping in encampments. It was about hiding the visibility of poverty, of public displays of mental illness, for the preservation of property values for wealthy constituents. 

When the federal government got involved to start formalizing responses to homelessness in cities across the United States, they built this structure known as the “Continuum of Care,” off of the nonprofit structure that already existed—shelters, soup kitchens, things like this. [Editor’s note: A “Continuum of Care” is a local planning body that receives homeless assistance funds from the federal government.] Today, we have a whole wealth of expertise within the “Continuum of Care” system, but in the majority of cities they actually don’t have any teeth to be able to carry out policy responses to homelessness. This is the case in Grants Pass: The “Continuum of Care” is a regional entity that is not a part of local government. 

Tars: The opposition [in the Grants Pass case] pointed to the existence of vagrancy laws at the dawn of the country to say this is something that was baked in at the founding. But those vagrancy laws specified two things. One was that people from outside the city could be criminalized just for coming in and not having a job. They also mandated support to people who became homeless and were residents in the community. So the founders actually would have been appalled by the behavior of Grants Pass, who is criminalizing its own citizens who have lived there, often for decades but have been trapped like so many Americans by the rising costs of housing, while they don’t have rising incomes. 

So this is not in keeping with the more generous parts of the history of our country. That history was renewed during the Great Depression, when Franklin Roosevelt saw one third of his nation with no house and said we are adopting a second bill of rights, including “the right to a decent home” for every American, and he put that rhetoric into policy. From the 1940s up through the 1970s, we did not have mass homelessness in this country; we had a social safety net.

For the past 40 years, we’ve been losing deeply affordable housing, and that has produced the modern homelessness crisis. And their response has not been to renew our commitment to those programs that worked really well for decades, but instead to turn to the law enforcement approach. 

Now that the courts have ruled in favor of the city of Grants Pass, how will this affect the way cities and states criminalize homelessness? Do you expect more people to be fined and even taken to jail? For example, I saw that the city of Missoula, Montana, just passed a new anti-camping law. Do you expect more such ordinances to pop up in the wake of this ruling? 

Herring: I think it’s important to understand what the status quo was, even with the protections of the Ninth Circuit [Martin v. Boise in 2018 and Grants Pass in 2022]. In Grants Pass, what people faced even then was an incredibly punitive system; they currently have to pack up their stuff and move park-to-park every three or four days. Many receive over $200 fines when they’re not able to move quickly enough. 

Similarly, in San Francisco, after the city acknowledged Martin v. Boise, policing and criminalization actually increased. The only difference was that now they had to offer people shelter, and that shelter could be anything; at one point during my research, officers were offering people a one-night bed. If you were surviving on the streets with your survival gear and were offered a shelter for one night, sure, you could go to that shelter. But you’d have to give up your tent, your backpack, and after staying in shelter one night, you would be back on the street with nothing.

This just goes to show that these protections were very minimal to begin with. 

All that was being protected against was a ban of sleeping with a blanket for 24 hours. Now that that’s removed, that means that places can do that. That’s what we’re gonna have to see. Now, in places like San Francisco or certain liberal strongholds, there’s not the political will to be so blatant about that. But in places like Florida, and other conservative areas, absolutely. [Editor’s note: A new Florida law is set to go into effect in October that will ban homeless people from sleeping in public or face the threat of jail.]

This could lead to a race to the bottom of increasingly more punitive policies, moving people around. 

Tars: There is a really well-funded effort being made by billionaires with template legislation that they are shopping around to state legislatures right now, to criminalize homelessness at the state level, to create relocation camps. 

This is also explicitly part of former President Trump’s platform for the presidency, that he wants to create a national camping ban and relocation camps for people who simply can’t afford housing in their jurisdictions. He had similar plans back when he was in office, and the fact that the Supreme Court did not take up Martin v. Boise back in 2019 was what stopped him. 

So now the Supreme Court has basically paved the way both for cities, states and potentially the federal government to engage in more criminalization of people experiencing homelessness.

The court rejected the Eighth Amendment argument, so are there still constitutional protections for people experiencing homelessness? For example, a Justice Department investigation recently found that the Phoenix Police Department violated the civil rights of people experiencing homelessness in its sweeps of encampments. What mechanisms are still in place to be a check on police enforcement?

Herring: This [Eighth Amendment defense] was holding cities accountable. It was the leading legal strategy to give some baseline protection and injunction in cities. It definitely had a huge symbolic effect and moral authority; I think one reason that we saw California lawmakers asking for the court to hear [Grants Pass] in the first place was that they really didn’t like being portrayed supporting cruel and unusual punishment. 

There’s lots of other ways that these legal cases are going to be pursued under the Fourth, Fifth, 14th Amendments dealing with privacy property and due process. But that doesn’t carry the same moral charge to say “you’re not following due process” as committing cruel and unusual punishment. I think that will also have a big impact on how these cases are covered in the news media, and are thought about politically.

Tars: This ruling doesn’t mean we don’t have any legal tools left, the decision was explicit that there are other legal avenues that we can still take. The National Homelessness Law Center is going to be working with all of its legal partners across the country, to continue to find ways that we can vigorously defend the rights of people experiencing homelessness. 

But at the end of the day, even if the Supreme Court had ruled in our favor, that was never going to end homelessness on its own. It was going to give us an important platform that we could build on.

States and localities need to be doing all that they can to address homelessness, including things like increasing funding for truly affordable housing, changing zoning laws to allow for more housing, expanding health care coverage—and at the bare minimum, again, at least rejecting the false notion that jails and fines will solve homelessness.

Do you think there are any positive examples of U.S. cities that are addressing unsheltered homelessness without resorting to punitive solutions? 

Willison: Almost all cities across the country unequivocally use civil and criminal penalties, even in places where they will also have concurrent supportive housing policies that are using housing-first principles to provide people with access to housing and essential social and medical services.

So when we think about how do we move the needle, thinking about intergovernmental incentives is really important. One thing that came up in 2022, is the use of Medicaid 1115 waivers: A lot of states across the country are starting to do this so Medicaid can now pay for time-limited direct housing costs. This is something that’s brand new; these Medicaid 1115 waivers are explicitly targeting homelessness and are providing either direct housing cost or tenancy supportive services for people experiencing homelessness.

Herring: There are also more immediate alternatives to criminalization, which are alternatives to policing. We’ve been seeing cities create new models for responding to 911 calls regarding people experiencing homelessness and mental illness crises. These reroute calls that would go to police to other trained specialists, such as social workers or psychiatrists. 

Of the examples we have, the longest running one is in Eugene, Oregon; it’s called Cahoots. They handle over 20 percent of the total calls; they handle 24,000 calls a year, and of those, only 250 need police backup. [Editor’s note: These are the numbers for 2019.] So police can be involved when necessary but it’s not the go-to response, as it is in so many cities today. 

But some of the places doing best on creating housing also have more anti-homeless laws and some of the highest intensity of policing. The issue is we often hear that these have to go hand in hand: One of the arguments put forward in these liberal cities, and also written into the majority decision, was that these laws supposedly help cities push people into services. And this is just a myth. None of the empirical evidence points to this. Dozens of social scientific studies say rather that this sort of criminalization actually undermines people accessing those services. 

Criminal records prevent people from getting jobs, prevent people from getting housing, prevent people from even getting government assisted housing or getting into drug rehab, and in some cases, even accessing shelters because they have outstanding warrants. It’s really important to recognize how this is counterproductive rather than supportive.

Willison: You have these notions that criminalization must be necessary in some way. We know it makes it so much harder to end homelessness, but these notions persist because of the ways in which people experiencing homelessness continue to be systematically marginalized or excluded from policy debates. And I think something to consider, beyond big and small policy changes, is how to get people into the room. 

There’s a lot of great things that are happening through tenant union organizing, or representation through Continuums of Care, or other other advocacy networks where you can provide adequate representation in policy debates for groups that can’t be there themselves. Right now it’s really one sided, and until we shift the power dynamics, we won’t see shifts in the narratives, which is essential to changing these institutions.

The roundtable has been edited for length and clarity.

The post “Designed to be Cruel”: How Grants Pass Will Ramp Up the Policing of Homelessness appeared first on Bolts.

Written by election law expert Joshua Douglas, The Court v. the Voters: The Troubling Story of How the Supreme Court Has Undermined Voting Rights dives into nine landmark cases in which the court undercut U.S. democracy. These include Citizens United, which struck down campaign finance regulations, and Rucho, which shrugged away partisan gerrymandering.

The country is now approaching an election in which the Supreme Court is poised to play an unusually large role, with uncertainty around what will be left of the VRA, what congressional maps will be used, and how justices will respond to lawsuits around the presidential results. 

At Bolts, we suspected that our readers may be trying to make sense of the legal landscape today with regards to voting rights. So last week, we asked you to share your questions about the Supreme Court’s ongoing effect on voting rights—and how the damage may be repaired. And Douglas agreed to respond to them.

Floored by all the submissions we received on social media and on our website, we struggled to narrow the list down but finally settled on eleven questions to pose to Douglas, from big-picture inquiries to some that dive into the weeds of election law.

Below, Douglas answers Bolts readers. He identifies the Supreme Court cases you may never have heard of despite their role in undermining voting rights, assesses where VRA protections may go from here, explains why he thinks ranked choice voting is safe for now, and much more.

Voting rights today: How we got here

What’s the most underrated case where this court weakened voting rights, but that we just don’t talk about enough? — Anonymous

There are two cases that hardly anyone has heard of but that have had a major impact on the way the Supreme Court treats the constitutional right to vote: Anderson v. Celebrezze, in 1983, and Burdick v. Takushi, in 1992. Anderson dealt with the desire of an independent candidate to gain ballot access after a state’s deadline for turning in enough signatures. Burdick was about an individual’s attempt to write-in a candidate instead of choosing one of the candidates listed on the ballot. (These two cases are the subjects of Chapters 1 and 2 of my new book.) But the specific disputes in these cases are less important than the judicial test that came out of them.

These two cases began the Supreme Court’s descent into its underprotection of the right to vote by failing to apply the highest judicial standard, known as strict scrutiny. 

Previously, the court in the 1960s had strongly protected voters by requiring a state to prove that it had a really good reason for a law that infringed upon the right to vote, and that the law actually achieved that goal. But in Anderson, the court began to weaken that test, instead balancing the burden that a law imposes on voters with a state’s interests in regulating the election as it wishes. Burdick went further, accepting a state’s desire to run its election as it sees fit. These two cases comprise what election scholars call the “Anderson–Burdick” balancing test. 

Now, states no longer have to explain, with specificity, their reasons for a law to have the Supreme Court uphold its voting regulation. As far as this court is concerned, a state can simply offer a more general assertion that it’s looking to “prevent voter fraud” or “ease election administration,”  even when doing so is at the expense of voters’ easy access to the ballot.

If voting is a constitutional right (isn’t it?), how is it that requiring an ID, to which one isn’t entitled to by constitutional right, can be used to trump (pun intended) the right to vote?  — Rocky, from California

This question goes to a broader point: The Supreme Court has failed to protect the constitutional right to vote and instead has unduly deferred to state rules on election administration, even when these rules infringe upon voters’ rights. 

In recent decades, the court has routinely credited state assertions of their desire to root out voter fraud, even when the state has zero evidence that there are real election integrity concerns. On voter ID specifically, in its 2008 decision in Crawford v. Marion County Election Board, the court rejected a challenge to Indiana’s ID law, saying that the plaintiffs had not presented enough evidence that the rules imposed a burden on voters. At the same time, it accepted the state’s generalized assertions of its desire to prevent in-person impersonation, even though Indiana could not point to a single example of this kind of voter fraud in its history. That is why, as I argue in the book, the court’s approach to the constitutional right to vote is backward.

Would you see any legal challenges the Supreme Court may accept in opposition of states implementing ranked choice voting for all their elections? — J.C.

It is hard to see what the successful legal challenge might be to ranked choice voting, and lower courts have already rejected some theories. In one case out of San Francisco, plaintiffs argued that ranked choice voting violated the concept of “one-person, one-vote” by giving voters the chance to choose multiple candidates. The court rejected the challenge because in the end each ballot is counted only once for one candidate. 

There was, however, a successful challenge to ranked choice voting in Maine, though it was brought under Maine’s state constitution, which explicitly says that the winner of state elections is the candidate with the most votes. That’s why Maine does not use ranked choice voting for the general election for governor, state senator, or state representative, even though it uses it for federal elections. But courts rejected other legal challenges to ranked choice voting in Maine.

Why is 18 the voting-age floor in the U.S.? Did SCOTUS have anything to do with that? — Lewis M.

At the founding the voting age was 21, which simply came from English common law. But 21 was essentially a historical accident: in medieval times, 21 was the age that men were thought strong enough to wear a suit of heavy armor and therefore entered adulthood. In the U.S., there was a long movement to lower the voting age to 18, starting around the time of World War II and increasing during the Vietnam War. Congress tried to lower the voting age to 18 for all elections, but the Supreme Court struck down the provision as it applied to state and local elections in Oregon v. Mitchell in 1970. That decision spurred Congress and the states to enact and ratify the 26^th Amendment in 1971, which lowered the voting age to 18 for all elections. 

Interestingly, although the amendment says that states cannot deny the right to vote to those 18 and older, it does not prohibit states or localities from lowering the voting age further. Several jurisdictions in California and Maryland have set a voting age of 16 for local or school board elections. And several states allow 17-olds to vote in the primary if they will be 18 by Election Day. There is nothing unconstitutional about these rules, at least under the U.S. Constitution.

Threats to the Voting Rights Act and redistricting reform

SCOTUS unexpectedly struck down Alabama’s congressional map last year in Allen v. Milligan. Could that decision have an impact on other states’ gerrymandering cases? Could it be enough to slow down gerrymandering in Texas? — Moon, from Texas

The Allen v. Milligan case was helpful to ensure stronger minority representation within a map, but the case itself did not make any new law. The court simply refused Alabama’s extreme argument to overturn decades of precedent in how the court construes Section 2 of the federal Voting Rights Act, which prohibits a voting practice (including redistricting) that has the effect of harming minority voters. As for Texas, the question is whether the map has sufficient minority representation, and there has been a lot of litigation on that front; the Allen v. Milligan ruling kept lawsuits like this alive but it did not create new precedent to help plaintiffs.

Setting aside whatever official immunity a state actor might have, does an individual voter have a private right of action against someone else for interfering with the voter’s electoral rights? — curiousKat, from Texas

The courts have long agreed that there is a private right of action under the Voting Rights Act for an individual or group to sue a governmental entity for violating the law. But several lower courts, most prominently the Eighth Circuit Court of Appeals, have recently questioned that rule, spurred by a comment that Justice Neil Gorsuch made in a concurring opinion in Brnovich v. DNC in 2021. Contrary to all history and precedent, the Eighth Circuit ruled that only the federal Department of Justice can bring suit under Section 2 of the Voting Rights Act. (Editor’s note: Bolts reported on this and other emerging threats to the VRA in January.)

That issue might reach the U.S. Supreme Court soon, and if the court agrees with the Eighth Circuit, then it will be much harder to effectuate equal voting rights, as the Department of Justice does not have the resources to bring many cases. The bottom line: if the court agrees that there is no private right of action under Section 2 of the Voting Rights Act, then you will likely see many fewer lawsuits that challenge unfair voting rules, and states will have even further leeway to regulate their elections without meaningful judicial oversight. 

I’m wondering if the Supreme Court will revisit its 2015 decision upholding Arizona’s independent redistricting commission. It seems they now have the votes to end redistricting reforms by proposition. The cynic in me says they haven’t overturned it because Dems would benefit compared to the current system. — @controversycow, on Threads

(Editor’s note: Arizonans set up an independent redistricting commission through a ballot initiative; but this case argued that redistricting power belongs to lawmakers, and that the citizens-led initiative improperly wrestled it from the legislature. The court rejected that theory on a 5-4 vote.)

If new challenges emerge to these commissions, the votes are probably there to strike them down, though there are reasons to think the Supreme Court might not go that far. 

That Arizona case was 5-4 with Chief Justice John Roberts writing a vigorous dissent. Justice Anthony Kennedy was in the majority in that case and now Justice Brett Kavanaugh is in the seat. And, of course, Justice Amy Coney Barrett replaced Justice Ruth Bader Ginsburg, who wrote the majority opinion in 2015. So it’s quite possible that the court could strike down independent redistricting commissions, at least for drawing congressional lines, saying that under the U.S. Constitution only the state “legislature” can engage in redistricting. 

That said, the court rejected a similar argument last year that only a state legislature can promulgate voting rules in Moore v. Harper, the case about the independent state legislature theory. That could be a saving grace for these initiative-created commissions: I could see enough justices refusing to go down the path of explicitly overturning both the Arizona Independent Redistricting Commission and Moore v. Harper decisions.

What can be done to bolster democracy?

In light of all the recent rulings striking down campaign finance rules, what can still be done legally to combat dark money in elections? — @sophieclw5, on Threads

The Supreme Court has still upheld disclosure requirements for campaign finance. In fact, in Citizens United, the 2010 case that I cover in chapter 5 of my book, the court voted 8-1 to uphold the disclosure requirements of federal law, with only Justice Clarence Thomas dissenting. So, I think both Congress and state legislatures could enact more robust disclosure rules. That would not stop the flow of money in campaigns, but it could close some of the loopholes that allow groups to hide behind fictitious names or organizations.

Of course, the political problem remains, in that Congress and many state legislatures do not have the political will to enact stronger disclosure rules.

Is there a path to restoring the VRA by invoking the 15th Amendment? — Donald, from Louisiana | Could Congress argue that Section 2 of the Fifteenth Amendment means that Congress’ judgment on voting rights supersedes court rulings (as long as Congress is acting to protect voting rights)? — @carlnyberg312, on BlueSky 

(Editor’s note: Section 1 of the 15th Amendment says, “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” Section 2 adds: “The Congress shall have the power to enforce this article by appropriate legislation.”)

The problem with using the 15^th Amendment is that the Supreme Court has long said that plaintiffs must prove intentional discrimination to invoke that amendment. That is why Section 2 of the Voting Rights Act is more powerful: it prohibits both discriminatory intent and discriminatory impact or effect. Unless the court changes its case law on the Fifteenth Amendment, it is hard to use that provision to protect voting rights unless there is clear evidence of a discriminatory intent, which is difficult to prove. 

Section 2 of that Amendment authorizes Congress to act, but the court has also narrowly construed a similar provision of the Fourteenth Amendment to say that any federal legislation must be “congruent and proportional” to the harm Congress is trying to address, which is a restrictive standard.

If the U.S. Supreme Court is undermining voting rights, what are state supreme courts doing? What can they do? Wisconsin’s supreme court struck down gerrymandering last year, is that the solution? — Anonymous

State courts are a great source of stronger voting rights protection, especially given that state constitutions go much further than the U.S. Constitution in conferring and protecting the right to vote. Virtually all state constitutions explicitly grant the right to vote, and, as I’ve written in recent scholarship, state constitutions have several provisions that collectively elevate the status of voters. 

The key is for state courts to use those provisions and not simply follow U.S. Supreme Court case law. Some state courts have construed their state constitutions to be in “lockstep” with the U.S. Constitution and federal case law, meaning that they simply follow U.S. Supreme Court precedent even though their state constitutions go beyond the U.S. Constitution in protecting voters. In my view, that approach is wrong given the stronger protection for voters within state constitutions. That is, state courts should be more protective of voting rights.

Take the issue of gerrymandering: Several courts, such as the Pennsylvania Supreme Court and the Wisconsin Supreme Court, have gone beyond the U.S. Supreme Court’s refusal to address partisan gerrymandering by pointing to more specific language in their state constitutions. But other state courts have adopted the U.S. Supreme Court’s ruling in Rucho v. Common Cause that issues of partisan gerrymandering are not for the courts to resolve. If neither federal courts nor state courts will address partisan gerrymandering, however, then there are few outlets for voters to vindicate their right to a fair election.

The Roberts Court has been willing to negate laws and constitutional amendments. In light of that, what might be the most practical and effective steps that can be taken to protect voting rights nationally, so that it will protect voters in states that have become increasingly hostile to voting? — Firthermor, from Maryland

I think that the best path to securing stronger voting rights in the current climate—especially given restrictive rulings from the Supreme Court—is to focus on local, grassroots movements to expand voting opportunities. As I discuss in my 2019 book, Vote for US, there are many examples of individuals working in communities all over the country to make our elections more convenient, inclusive, and democratic. Many movements, including women’s suffrage, vote-by-mail, ranked choice voting, and others started at the local level and then spread to other places. 

For example, I love the efforts of the organization VoteRiders, which helps people obtain IDs so they can vote. Having a valid ID also assists them in so many other aspects of their lives. I am also impressed with a local group in my own community in Kentucky, CivicLex, which helps members of the community understand and engage with local government. [Full disclosure: I am a Board member of CivicLex.] The National Vote at Home Institute does great work in promoting expanded vote-by-mail policies.

The post How the Supreme Court Is Undermining Voting Rights: Your Questions Answered 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.