Less then a week into the job, Supreme Court Justice Neil Gorsuch will have his first chance, behind closed doors at least, to weigh in on voting rights.
When the justices meet Friday for their private conference, the first since Gorsuch’s confirmation, among the cases that they will be considering whether to take up is an appeal of a landmark ruling striking down North Carolina’s mammoth restrictive voting law.
The moment is an anxious one for voting rights advocates, who had seen a number of lower court victories on key cases in the months since the death of Justice Antonin Scalia and were cautiously optimistic that the Supreme Court was about to flip their way in time for them to cement that progress at the highest court.
While it is unclear how Gorsuch is likely to rule on the major questions bubbling up in voting rights litigation, if he does represent the second coming of Scalia, as he has been billed by his supporters, then some of those intermediary wins are now at risk.
“There was some hope in the voting rights community, especially with a sympathetic Supreme Court, that courts would increasingly provide the role of being a back stop of more egregious limitations on voting rights,” Richard Hasen, a professor at UC-Irvine School of Law who also runs the Election Law Blog, told TPM. “Now all of that is off the table. “
The mood was quite different a year or even six months ago, after President Obama had chosen Judge Merrick Garland—a moderate who nonetheless would have shifted the court left in replacing Scalia— and when Hillary Clinton was viewed as likely to win the election.
As Hasen himself wrote in a New York Times op-ed last August, “the changing composition of the Supreme Court” meant that were “no longer five justices willing to uphold restrictive voting laws.”
But that ground shifted significantly with President Trump’s surprise victory, coupled with the Senate GOP’s unprecedented blockade of Garland, which allowed Trump to chose Scalia’s successor instead.
Gorsuch will likely return the court to the status quo, but at a time when states are doubling down on passing restrictive laws and the voting rights community can’t depend on the Justice Department, under Attorney General Jeff Sessions, to fight them.
“The legislatures are in a position where if they are determined to suppress voting rights, there are not a lot of options but to go to the courts,” Myrna Perez, deputy director of the Democracy Program at the Brennan Center, told TPM. “While in other periods in this country’s history, there were other checks and balances and different pressure points that could be happening, the courts are going to become important to a highly politicized legislative system.”
As a judge on the Colorado-based 10th U.S. Circuit Court of Appeals, Gorsuch didn’t participate in any major voting cases, beyond a uncontroversial National Voter Registration Act decision. The comparisons of him to Scalia and the so-called “originalist” legal doctrine Scalia championed are perhaps the most worrying signs for voting rights advocates. But Caroline Fredrickson, president of the progressive legal organization the American Constitution Society, also pointed to his votes on cases concerning the 14th and 15th amendments.
“His voting record is extraordinarily unsympathetic to the types of claims that would be raised in a voting rights case,” she said. “He hasn’t shown himself to appreciate the Reconstruction amendments.”
Gorsuch avoided saying anything of substance when asked about voting rights during his confirmation hearings last month.
“Judge Garland certainly had a command of the Voting Rights Act and his record seemed to reflect an appreciation for the ongoing reality of voting discrimination that we face in the country. It’s unclear Gorsuch brings to bear a similar appreciation for these issues,” said Kristen Clarke, the president of Lawyers’ Committee for Civil Rights Under Law. “Nothing that we learned during the hearings suggests that he is someone who accepts and understands that voting discrimination remains a crisis level issue.”
He comes to the court as the on-the-ground effects of the Supreme Court’s 2013 Shelby County v. Holder decision, which gutted the Voting Rights Act, and to a lesser extent its ruling in 2008’s Crawford v. Marion County, are making their way back up the judicial ladder.
In Crawford, the Supreme Court greenlit a photo voter ID law enacted by Indiana – despite concerns that photo ID requirements place a disproportionate burden on minority and lower income voters, who are less likely to have them. Nearly three-dozen states now have some form of voter ID requirements on the books.
The Shelby County decision cranked open the voter suppression floodgates even wider, by hollowing out a provision in the Voting Rights Act that required certain states with a history of racially discriminatory voting practices to have changes to their election protocols federally approved.
The states previously covered by that section of the Voting Rights Act rushed to implement restrictive laws, prompting the latest wave of litigation in which legal questions about Voting Rights Act and particularly Section 2 are at the forefront.
While Scalia’s seat remained vacant, voting rights advocates hit a winning streak at the lower court-level, where federal judges ruled against voting restrictions in Texas, North Carolina, Kansas and elsewhere.
Without Scalia, the Supreme Court was split 4-4, and the court’s conservatives were unable to launch emergency interventions to pause the rulings against the restrictive laws. Fueling the voting rights advocates’ success in the courtroom was the evidence drawn from years in which these types of restrictions were in place, allowing the attorneys to launch narrower and sharper arguments.
One such case is among those Gorsuch will be considering with his colleagues Friday. It stems from a Frankenstein monster of a voting law passed by North Carolina’s GOP legislators, post-Shelby, that an appeals court last summer said targeted black voters “with almost surgical precision.”
The justices will be considering two procedural questions concerning the case—whether North Carolina’s newly elected Democrat governor and attorney general can withdraw the appeal, and whether the state’s Republican legislators can intervene to keep it going—as well as whether to take the case up on the merits.
Conservative legal advocates who favor voting restrictions are already clamoring for the Supreme Court to take up the appeal, in order to “stop this transformation of the Voting Rights Act into a partisan political weapon,” as J. Christian Adams, a veteran of George W. Bush’s DOJ, put it.
According to Hasen, it could be some time before we find what action, if any, the Supreme Court will take on it. The fact that it was scheduled for conference twice before and then withdrawn suggests the justices were waiting for Gorsuch’s input to consider it.
The other big cases on the horizon include a gerrymandering case in Texas where a three-judge panel’s finding of an discriminatory intent could put the state back under the VRA’s federal approval scheme. Farther down the pike is Texas’ voter ID case, while a lawsuit challenging Ohio’s provisional ballot rules is a sleeper case that has been petitioned for Supreme Court review.
“Everybody is going to be watching to see if there are going to be further constraints put down on the right to vote. There’s certainly several cases that are going to the court very quickly,” Fredrickson said.