Elections and the Supreme Court

Though the US Constitution leaves the regulation of elections largely to Congress and the state legislatures, the Supreme Court has still been a major influence on elections throughout the United States. The court's role has ranged from upholding limitations on voting rights to active efforts intended to make the electoral system fairer and more accessible.

Background

The US Constitution left elections and suffrage almost totally to the states’ discretion. Article I, section 2, provides that the electors (voters) of each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature. Although this clause provides a constitutional basis for the right to vote in federal elections, such a right did not actually exist until conferred by the states. Consequently, no uniform national electorate existed for several decades.

The states gradually removed most of the barriers to voting for White men. However, they were slow to extend suffrage to others, and the courts hesitated to infringe on the traditional prerogative of state legislatures to confer the privilege of voting. For example, when suffragettes (those seeking the right to vote for women) filed a suit claiming the right to vote under the equal protection clause of the Fourteenth Amendment, the Supreme Court ruled in Minor v. Happersett (1875) that the right to vote was not a constitutionally protected right but a privilege conferred by an individual state.

Civil War Amendments

Regulation of elections and suffrage remained the exclusive domain of the states through the US Civil War (1861–65). Following the war, a major concern of Congress during Reconstruction was the enfranchisement of former enslaved people. Congressional efforts produced the Thirteenth (1865), Fourteenth (1868), and Fifteenth (1870) Amendments. The Fourteenth Amendment implied suffrage for Black Americans by providing that states’ representation in Congress could be reduced if they denied Black Americans their voting rights. The Fifteenth Amendment prohibited the states or the federal government from excluding a person from voting on the basis of race, color, or previous condition of servitude.

These post-Civil War amendments designed to enfranchise Black American voters led to a variety of efforts to block their participation, which in turn made the Supreme Court a key player in the issue. The court’s early involvement was a delicate balancing act. It tried to provide some federal protection of voting rights while still accommodating the traditional state control of suffrage and elections. In the 1870s the lower federal courts at first held that the right to vote, even in federal elections, derived from state constitutions and laws. In United States v. Reese (1876), the court pointed out that the Fifteenth Amendment did not confer suffrage on anyone but rather prohibited the states or the federal government from denying the franchise to anyone on the basis of race, color, or previous condition of servitude.

By the 1880s the court was beginning to uphold the federal government’s power to protect the right to vote in state elections against racially based denials by either state officials or private parties and in federal elections against denial from any source and for whatever reasons. In Ex parte Siebold (1880), Ex parte Clarke (1880), and United States v. Gale (1883), the court upheld convictions of state officials for interfering with national elections. In Ex parte Yarbrough (1884), the court declared that voters in national elections got their right to vote from the US Constitution, though the states could determine voter qualifications. This case also established federal power to protect the right to vote in national elections against private as well as state discrimination whether racially based or not.

Attempts at Circumvention

In response to growing federal pressure, the states and private parties devised various strategies for either legally denying or discouraging Black Americans from voting. Among these were such devices as grandfather clauses, poll taxes, literacy tests, White primaries, and outright intimidation. In the 1890s the court acceded to such state disenfranchisement schemes in decisions such as Plessy v. Ferguson (1896), which legitimized segregation under "separate but equal" Jim Crow laws, and Williams v. Mississippi (1898), in which the court allowed to stand a Mississippi law that authorized literacy tests and a poll tax.

In the first half of the twentieth century, Congress and the Supreme Court began to address discrimination against voters more aggressively, and one by one various discriminatory practices began to fall. In Guinn v. United States (1915), the court declared grandfather clauses (stipulations that only those whose ancestors voted could also vote) to be unconstitutional violations of voting rights. This decision put the court on record as regarding any attempts to disenfranchise voters because of their race or color as violations of the Fifteenth Amendment.

However, when the court ruled in Newberry v. United States (1921) that party primaries were not an integral part of the election process, this put primaries outside the reach of federal regulatory power. After this ruling, a number of states proceeded to adopt laws allowing political parties to determine who could vote in their nominating elections. In some states, laws stipulated that only White people could vote in primaries, effectively disenfranchising Black Americans in much of the South. In 1927 the court tried to end the practice by nullifying Texas’s White primary law in Nixon v. Herndon. However, this decision failed to completely close the loophole, and political parties in several states were organized as private clubs, which excluded Black Americans from participation in the nomination of candidates. In 1935 in Grovey v. Townsend, the court ruled that as private groups, the political parties were not subject to provisions of the Fourteenth and Fifteenth Amendments.

Six years later in United States v. Classic (1941), the court, realizing that the time, places, and manner clause of Article I was meaningless if primaries were not covered, reversed its Newberry position and declared primaries an integral part of the election process. Three years later, in Smith v. Allwright (1944), the court struck down the private club claim, holding that when the political parties were acting as agents of the state in the primary election process, they were subject to provisions of the Fourteenth and Fifteenth Amendments. The Democratic Party in Texas then formed the unofficial Jaybird Party to nominate candidates and thereby exclude Black Americans from the process. However, in Terry v. Adams (1953), the court ruled that even though “unofficial,” the Jaybird Party was performing an official election function and was engaging in unconstitutional discrimination.

With the White-only primary finally circumscribed by the Supreme Court, those seeking to deny Black American voting rights turned to more subtle and indirect means of challenging the court’s commitment to eliminating voter discrimination. However, the liberal-leaning court led by Chief Justice Earl Warren from 1953 to 1969 generally continued to support voting rights and expand federal power. In Gomillion v. Lightfoot (1960), the court struck down an Alabama law that redrew the boundaries of the city of Tuskegee in such a way that virtually all of the city’s Black Americans were placed outside the city limits. The court stated that this clearly violated their voting rights under the Fifteenth Amendment. In 1964 the Twenty-Fourth Amendment went into effect, outlawing poll taxes as a qualification for voting in federal elections, and in 1965 Congress passed the Voting Rights Act, designed to address any remaining pockets of discrimination against minority voters. In Harper v. Virginia State Board of Elections (1966), the court banned poll taxes for all elections, saying they violated the equal protection clause. Also in 1966 the court upheld the Voting Rights Act’s ban on literacy tests as a voting qualification (South Carolina v. Katzenbach) and New York’s English literacy requirement in Katzenbach v. Morgan.

Diluting the Vote

With the passage of the Voting Rights Act, the Supreme Court's involvement in election issues shifted slightly from voter access to efforts to dilute the voting power of minority voters or limit their chances of electoral success through such methods as at-large elections, multimember districts, and gerrymandering. The court also began to shift to a slightly more conservative approach under Chief Justice Warren Burger (1969–86). In White v. Regester (1973), the court ruled that multimember districts violated voters’ constitutional rights when their effect was to dilute the voting strength of minority voters. However, in Mobile v. Bolden (1980), the court refused to strike down a system of at-large elections in the absence of evidence of “intent to discriminate.” Congress responded by amending the Voting Rights Act in 1982 to include a “discriminatory results test” instead of the court’s “discriminatory intent” standard. In Rogers v. Lodge (1982), the court blended the two, saying an intent to discriminate could be inferred from the results of an election that produced no Black office holders or a disproportionately small number of them.

Although the Supreme Court had generally sought to make the election processes more open and democratic, as is shown in its decisions on the election of judges and voter residency requirements, it had also sought to leave as much control as possible to the states. In Chisom v. Roemer (1991), the court held that provisions of the Voting Rights Act apply to the election of judges as well as of other elected officials. In Dunn v. Blumstein (1972), the court invalidated Tennessee’s one-year residency requirement for state and local elections, expressing a preference for a thirty-day requirement. In Growe v. Emison (1993), the court ruled that when parallel redistricting plans are pending in state and federal courts, the federal courts must defer to the state courts. In Burson v. Freeman (1992), the court allowed Tennessee’s ban on campaigning within one hundred feet of voting places on election day, and in Burdick v. Takuski (1992), the court found that Hawaii’s ban on write-in votes did not impose unreasonable or discriminatory limits on the right to vote.

Apportionment

Other than on the issue of minority voting rights, some of the most far-reaching actions of the Supreme Court on election issues over the decades have been in the area of apportionment and the instituting of the one person, one vote concept. Although most states had provisions calling for election districts to be redrawn after each US Census, many either ignored this task or failed to take it seriously. Consequently, many election districts became badly malapportioned, with widely disparate population sizes. In California, for example, by the mid-twentieth century Los Angeles County had 6 million residents while the least populous rural district had only 14,000. In Florida, the population of state senate districts ranged from 900,000 to 9,500. When this issue was brought to the court in Colegrove v. Green (1946), the majority held that redistricting was a “political issue” that the court could not address. Malapportionment became more widespread, making voting strength from district to district more unequal.

In 1962 the court agreed to revisit the issue and in Baker v. Carr (1962) ruled that malapportionment was a justiciable issue under the equal protection clause of the Fourteenth Amendment. Although Baker set the precedent for court-ordered apportionment, it left many questions unanswered. Further elaboration came quickly. In Gray v. Sanders (1963), the court held that a Georgia election plan that worked to the disadvantage of the more populous counties denied equal voting rights. In an 8–1 decision, the court laid down the one person, one vote concept. In Wesberry v. Sanders (1964), the court applied the same concept to districts for electing members of the House of Representatives. Writing for the majority, Justice Hugo L. Black said that as nearly as possible, one person’s vote in a congressional election should be worth as much as another’s.

Four months later in Reynolds v. Sims (1964), the court ruled that both houses of state legislatures must be based on population. In this decision Justice Earl Warren declared that Wesberry had established the principle that representative government meant equal representation for equal numbers of people. In Avery v. Midland County (1968), the court extended the one person, one vote concept to city and county governments. In Kirkpatrick v. Preisler (1969) and Wells v. Rockefeller (1969), the court noted that the one person, one vote principle required that states make a good-faith effort to achieve precise mathematical equality in their distribution of population among districts.

Twenty-First Century Cases

Although its path took various twists and turns, generally the Supreme Court’s twentieth-century involvement in the electoral process was directed toward making the process more open and accessible and making the rights of all voters and the relative strength of their votes as equal as possible. Through its decisions on elections and voting, the court served as a major force for a more egalitarian democracy in the United States. It continued to play an influential role in these issues into the twenty-first century, but showed signs of a substantial ideological shift. The Supreme Court's membership increasingly tilted conservative, which informed the reassessment of some longstanding election-related issues, including parts of the Voting Rights Act. Deepening partisan political divisions in the country meant that the court faced increasing scrutiny and controversy on many of its decisions.

A significant example of the Supreme Court becoming directly involved in an election occurred in 2000, during the presidential race between George W. Bush and Al Gore. The election proved very close, with the outcome depending on which candidate won Florida. A recount was held in that state due to the very slim margin of votes, and some observers claimed there were issues with interpreting certain punch-card ballots. The Florida Supreme Court allowed for a manual recount of a certain number of disputed ballots, but the Bush campaign appealed, and the US Supreme Court ruled in Bush v. Gore (2000) that the recount must be stopped, effectively giving Bush the presidency. The court's narrow decision was made by the five conservative-leaning justices, with all four liberal-leaning justices dissenting. It was immediately controversial, with many critics arguing that the ruling was blatantly politicized. Some scholars have suggested that the case had a wide-ranging negative impact on public perception of the integrity of both the Supreme Court and the US electoral system.

With a conservative majority remaining in place over the following years, the Supreme Court made several notable rulings that weakened the Voting Rights Act of 1965. In Shelby County v. Holder (2013), another controversial 5–4 decision, the court held that part of that law was unconstitutional; in effect, this ended the practice of requiring certain states and local jurisdictions that historically had discriminatory voting practices to obtain federal clearance before changing their election laws or procedures. While the court found that the particular subsection of the law was outdated and therefore created an undue burden on state sovereignty, critics argued that the Shelby decision opened the door to various practices that could amount to voter suppression. Another important case was Brnovich v. Democratic National Committee (2021), which upheld certain state voting restrictions and narrowed the interpretation of when racial disparities must be considered. Many legal scholars noted that the Shelby and Brnovich cases together undermined much of the core intent of the Voting Rights Act and made it easier for election authorities to reduce voting access.

Other issues of voting access such as redistricting (especially gerrymandering) and voter roll purges also continued to reach the Supreme Court through the 2010s and into the 2020s. A few decisions were seen as supporting more expansive voting rights, such as Cooper v. Harris (2017), in which the court rejected two redrawn North Carolina electoral districts as racially discriminatory, and Allen v. Milligan (2023), which found that Alabama's redistricting plan had likely violated the Voting Rights Act. However, other cases continued the trend toward a more conservative approach to electoral law. For example, Abbott v. Perez (2018) and Rucho v. Common Cause (2019) limited federal intervention in partisan gerrymandering, while Alexander v. South Carolina State Conference of the NAACP (2024) rejected a claim of racial and partisan gerrymandering. Husted v. Randolph Institute (2018) approved certain types of voter roll purging, which the liberal justices criticized as making it harder for some people to vote.

The unusual public health circumstances surrounding the 2020 general election also highlighted the Supreme Court's electoral process involvement. The outbreak of the COVID-19 pandemic in early 2020 led many states to make emergency adjustments to voting laws in an effort to balance protecting voting rights and public safety. However, measures such as expanding or extending vote-by-mail procedures were opposed by many Republicans, leading to several legal challenges. The Supreme Court generally adhered to the principle of refraining from intruding upon state lawmaking regarding the election process, allowing several state reforms to stand. The court also rejected multiple cases in which President Donald Trump, the Republican incumbent, contested his electoral defeat to Joe Biden and made unfounded claims of widespread voter fraud.

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