by Noah Feldman
Legislatures across the U.S. are considering more than 100 bills aimed at restricting voter access, according to a report by the Brennan Center for Justice. The bills represent a direct, partisan reaction to the Democrats’ success in the 2020 election, when high turnout and mail-in voting powered blue victories in closely divided states like Georgia, Arizona and Pennsylvania.
How likely are these bills to pass, and how likely are the ones that become law to survive legal challenges? Unfortunately, I don’t have good news for liberals on either of these questions.
Where partisan gerrymandering favors Republicans in state legislatures, there is little to stop these bills from passing, or voters from punishing legislators for enacting them. In states where Republican legislators have used sophisticated computer technology to draw districts that systematically favor Republicans, Republicans can expect to keep control of many state legislatures even where the state’s overall voting is trending Democratic.
Democrats’ only fail-safe is veto by state governors, who are elected statewide. But in closely divided states, governors are as likely to be Republican as Democratic. In Arizona and Georgia, both the legislature and governor are Republican.
Where these bills become law, the results will be self-reinforcing: that’s the terrifying beauty of partisan gerrymandering. The party in power makes itself more powerful by disadvantaging the other side.
When the democratic system goes awry like this, it’s natural for the losing side to seek a remedy from the courts. But it is state legislatures that, for the most part, control election rules in the states. And it will be hard to defeat them in court, because the Supreme Court has declined to strike down laws aimed at entrenching partisan majorities — despite a generation of voting rights activists pushing the Supreme Court to declare that laws designed to entrench the power of one party violate the Equal Protection Clause of the Constitution.
The case of gerrymandering is instructive. For the better part of a decade, the Supreme Court flirted with finding it unconstitutional. Voting rights advocates argued that partisan gerrymandering was similar to racial gerrymandering; the court has a robust (albeit complicated) doctrine that deems laws unconstitutional if they are adopted with the goal of advantaging one racial group over another in election outcomes.
The court’s liberals seemed to be on board, and it came down to Justice Anthony Kennedy, the swing voter for a good part of that time. Ultimately, however, after publicly mulling over different theories for why partisan gerrymandering might be unconstitutional, including a First Amendment theory, Kennedy declined to cross the Rubicon. Now that he’s retired, the prospects for the court to strike down partisan gerrymandering are approaching zero.
This background matters because the strongest legal attack on new restrictive voting laws would be that they are aimed at making it harder for Democrats to vote. In the past, lower federal courts have struck down some voter ID laws as motivated by racial discrimination, motivating the states to tweak the laws to survive judicial scrutiny. But at present there is no binding legal precedent for striking down voter access laws on the ground that they are aimed to help Republicans at the expense of Democrats.
Some of Republican initiatives are so egregious they may not pass. That seems like a real possibility for bills in Arizona, Mississippi and Wisconsin that would end the practice of winner-take-all presidential voting in those states. Instead, the laws would divide up the states’ electoral votes by congressional district — districts that have already been gerrymandered to favor Republicans. That would have helped former President Trump in the swing states of Arizona and Wisconsin, both of which went for Biden in 2020. (Only Nebraska and Maine divide their electoral votes, and not in a way guaranteed to favor either party.) Proposals obviously intended to thwart the will of the majority of a state’s voters may fizzle before they ever become law. But there’s little to stop subtler efforts from succeeding.
Some partisanship is inevitable in the U.S. system, which lacks the independent electoral decision-making mechanisms that exist in most other well-functioning democracies. But the dangers of gerrymandered entrenchment are particularly serious.
The bottom line is the courts aren’t coming to help. The political process is going to have to find solutions on its own — or democracy itself will be the loser.
Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter.
