Members Only | November 16, 2022 | Reading Time: 4 minutes

The Supreme Court controlled the midterms 

It drove the issues. It dictated access to the ballot.

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Midterms are over and we (almost) have all the results. While it’s looking like Republicans will win a narrow margin in the House, Democrats have retained 50-50 control and have a chance to make it to 51 seats. 

While there is still a lot up in the air, two things are clear. One, the Democrats outperformed expectations around the country against enormous odds. The other thing that’s clear is that elections are being determined by Supreme Court decisions.

Abortion was the second most important issue for people in midterms according to exit polls, only a few points behind inflation. It was also the most important issue in Pennsylvania and Michigan where Democrats made great strides. Maggie Hassan, an incumbent Democratic senator from New Hampshire, managed to hold on to her seat by highlighting abortion in her reelection campaign. 

No conversation about elections and the Supreme Court can ignore the effect of Shelby v. Holder. It’s likely that the increase in voter suppression laws after 2013 influenced the passage of more voter suppression in states without historical discrimination.

Abortion should have been the most important issue in 2016, 2018 and 2020 to prevent Roe from being overturned but unfortunately many politicians ignored it and most voters didn’t prioritize it. 

Hillary Clinton centered abortion rights in 2016. Kirsten Gillibrand and Kamala Harris focused in 2020 on reproductive justice issues. But the larger party and Democratic voters failed to see the import of following their lead. Unfortunately, it took the Supreme Court decision in Dobbs v. Jackson to force people to pay attention.

And pay attention they did! Even before midterms, it was clear many votes were mobilized to protect abortion. In August, Kansas voters rejected an anti-abortion ballot measure by an 18-point margin. 

There is also significant evidence that the Dobbs decision drove voter registration in the months preceding the midterm election with higher numbers among young voters and women. 

In every state where abortion was on a ballot measure, abortion rights won. A California amendment passed stating that the state Constitution cannot interfere with someone’s reproductive freedom. 

Like Kansas’ earlier abortion vote, Kentucky voters rejected a ballot measure to declare there is no right to abortion in the state constitution. Michigan voters passed a ballot measure to ensure their constitution protects a right to reproductive freedom. Montana voters rejected an attempt to criminalize healthcare providers. Vermont voters passed an initiative to amend the state constitution to ensure a right to “personal reproductive autonomy.”

Another Supreme Court decision, New York State Rifle & Pistol Association v. Bruen, got less attention but should probably have been highlighted by the Democrats in the way abortion was. 

Gun regulation was in the top five issues most important to voters this election, but few politicians focused on it. Last year, the Supreme Court overturned a New York gun regulation that allowed more discretion for issuing gun permits with a “may issue” law rather than a “shall issue” law. The court ruled that carrying a gun, not just owning one, was a constitutional right. I’m not aware of any politicians who tried to use the case to rally voters.

The case was decided a month after the Uvalde massacre. School shootings have become common and Uvalde did little to move public opinion, though it did start an important conversation about a police officer’s “duty to act.” Many of the parents of the Uvalde victims rallied behind Beto O’Rourke, trying to unseat Greg Abbott as governor of Texas. O’Rourke was one of the few politicians to prioritize gun reform and the Uvalde shooting as part of his campaign. Unfortunately, Democrats couldn’t overcome the voter suppression and gerrymandering enabled by the Supreme Court.

In one of the most devastating decisions for fighting partisan gerrymandering, the court ruled in Rucho v. Common Cause that partisan gerrymandering issues are not the purview of the federal court system, so a major avenue of redress was removed. 

While we’re awaiting a ruling on Merrill v. Milligan, and Ardoin v. Robinson after oral arguments this term, last term the court allowed the racist gerrymandered map in Alabama to go in effect. 

The court is likely to sustain the racist map, and the Louisiana map in Ardoin v. Robinson, which they also temporarily sustained, will severely weaken section 2 of the Voting Rights Act and allow Black voter dilution. Gerrymandering is only going to get worse.

The decision to allow the Alabama map to go into effect in February likely influenced gerrymandered maps all over the country for the midterms. A judge declined to block a racially gerrymandered map in Georgia. A Texas court dismissed multiple claims against their gerrymandered map that targeted Latino representation. 

In Florida, Ron DeSantis demanded a more extreme gerrymander than what Republicans initially proposed in the state, which the Florida Supreme Court reinstated after a lower court struck it down. 

Even a New York court rejected the initial congressional map and forced a map less favorable to Democrats (no surprise Democrats lost 4 congressional seats in New York). Ohio’s map also showed extreme Republican bias going into election day.

And no conversation about elections and the Supreme Court can ignore the effect of Shelby v. Holder. It struck down a key element of the Voting Rights Act. The effect of Shelby was that states with histories of voting discrimination would no longer need federal preclearance to pass new voting laws. It’s likely that the increase in voter suppression laws after 2013 influenced the passage of more voter suppression in states without historical discrimination. Twenty states faced new voter restrictions since the 2020 election.

The 2022 midterms saw a rash of new voter suppression laws in response to the myths about fraudulent elections perpetrated by Donald Trump after losing in 2020. Over two years, there has been a significant increase in laws that criminalize election behavior and ultimately amount to voter intimidation through the involvement of law enforcement in the name of election security. Since 2020, 132 bills have been introduced across 42 states to increase police involvement in elections. Twenty-eight passed in 20 states.

The Supreme Court is controlling our elections. 

It is driving the political issues we have to focus on. 

It is dictating our access to the ballot box. 

There’s not much we can do about the Supreme Court (that is, until Samuel Alito or Clarence Thomas need to be replaced) without reform, like expanding the court to 13, but federal judges across the country are working to fight back against the court’s fascism. 

Our best hope is to nominate more federal judges, which means we must ensure that Senator Raphael Warnock wins his runoff.

Mia Brett, PhD, is the Editorial Board's legal historian. She lives with her gorgeous dog, Tchotchke. You can find her @queenmab87.

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