Susan Milligan / Legal Issue 2017

America’s nasty, brutish, and not-so-short 2016 presidential campaign raised some painful issues about the nation’s democratic institutions and the treatment of people involved in them.

Charges were made about voter fraud, “rigged” elections, and whether people’s ethnic or racial background makes them more likely to commit crimes. It was the sort of ugly dialogue justices on the U.S. Supreme Court can typically experience as interested observers, separated from the politics and immune from the fallout. But this year, a high court already hit with the collateral damage of legislative-executive branch politics may well be dealing with the aftermath of a painful election season.

Voting rights, redistricting, and the fairness of the criminal justice system to racial and ethnic minorities are all topics likely to reach the high court, adding a judiciary sequel to the tense debates of the 2016 campaign season. “It’s going to go on forever, apparently,” quips David Coale, a partner at Dallasbased Lynn Pinker Cox Hurst who has been monitoring critical cases rooted in the Lone Star State.

The high court already went through its own politics-related drama in 2016, hampered by the absence of a ninth justice after the death of Antonin Scalia in February. With the Senate refusing to confirm a new justice before the election, the Supreme Court was left without a tie-breaking vote. While Justice Stephen Breyer noted on MSNBC’s “Morning Joe” that half of all cases are decided unanimously, there were cases in which the divided court was a factor. In United States v. Texas, a 4–4 tie left standing, without precedent-setting authority, a lower court ruling striking down President Barack Obama’s executive order shielding some five million undocumented immigrants from deportation and allowing them to work. In another case, Zubik v. Burwell, the high court by an 8–0 vote ordered the parties to find a compromise over how religiously-affiliated businesses handle the contraception coverage provision of the Affordable Care Act. Observers believe the order was a compromise among jurists who wanted to avoid a 4–4 tie on such a politically potent issue.

Further, the court in 2016 appeared to be filling its docket at a slower pace, likely, says American University Washington School of Law professor Stephen Wermeil, because they knew certain cases would not get a majority vote.

The Supreme Court famously got dragged into electoral politics in 2000 when its decision in Bush v. Gore delivered the presidency to George W. Bush after a disputed vote count in Florida. And in the coming year, the high court may be asked to decide election-related matters that go far beyond a single campaign for president.

"The whole question of what states can do and how far they can go in imposing voter eligibility requirements is a critically important issue and one that’s in many ways way up in the air." Stephen Wermeil, American University Washington School of Law Professor

“For me, the big imprint is democracy and the laws of democracy,” says Wendy Weiser, director of the Democracy Program at the Brennan Center for Justice at NYU School of Law.

Legal experts are still watching to see what, if anything, the Supreme Court justices will do with several voter-access cases that arose out of the court’s 2013 decision in Shelby County v. Holder, which weakened aspects of the Voting Rights Act. That ruling said that the “preclearance” a number of jurisdictions needed before making changes to their voting laws was outdated, since the criteria identifying those states and localities was based on decades-old  data. With the preclearance part of the law (section 5) effectively gutted, states moved ahead to change their laws without asking for permission first, altering everything from voting hours to identification requirements to straight-ticket voting. 

“The whole question of what states can do and how far they can go in imposing voter eligibility requirements is a critically important issue and one that’s in many ways way up in the air,” says American University’s Wermeil.

The laws—several of which are in traditional presidential election battleground states—have been challenged and largely weakened by lower courts. The Supreme Court did not rule definitively on any of the cases before Election Day—quite predictably, Supreme Court watchers say, since the court doesn’t want to appear to be influencing election results. But because several states have used the Shelby decision to make dramatic changes in the way people vote, “it’s really hard to believe they’re not going to take some of those cases up,” says Henry L. Chambers Jr., a constitutional law professor at the University of Richmond School of Law.

Chief among them is a case out of North Carolina where a strict voter ID law, purportedly intended to crack down on voter fraud, was largely thrown out by a federal district court, which accused state lawmakers of attempting to suppress the African- American vote “with surgical precision.” The law had eliminated one Sunday of early voting (hampering the traditional “souls to the polls” efforts by black church-goers) and imposed strict ID laws for in-person voting, calling for identification documents far more likely to be held by white people than African-Americans.

After a loss in federal district court, North Carolina appealed to the Supreme Court for a pre-election stay, but was denied in a 4–4 vote, leaving the underlying court’s decision intact. Since the short-handed high court could not deliver a majority either way, experts expect a fully constituted Supreme Court to take up the matter again.

A strict voter ID law in Texas was softened by a federal court, which ordered the state to allow more forms of identification as proof of voter eligibility and was upheld by a federal appeals court. The original law, critics said, disenfranchised young people and racial minorities with the sorts of ID demanded (allowing gun permits as ID, for example, but not student IDs). Texas is now appealing the lower federal court order to the Supreme Court, hoping it will reinstate the stricter law.

In Wisconsin, opponents of a voter ID law lost the final lower court fight to stop the law before the elections. Critics say some 300,000 Wisconsinites, largely minorities and students, lack the kind of identification needed to vote. That case, too, could wend its way to the Supreme Court, experts say.

Those cases go to the heart of campaign season complaints about a “rigged” election. Critics say cases of fraudulent voting are minuscule and not worth imposing rules that could keep large swaths of Americans from casting a ballot. But the court may nonetheless end up giving leeway to states, which control their own elections, including for president and other federal offices.

“Even though there is no serious evidence of serious voter fraud, if the public is afraid of voter fraud, the state may have the right to put the laws in place,” Chambers says.

Redistricting is another issue that had both parties complaining in the 2016 challenging district lines in North Carolina and Virginia. In both cases (congressional district lines in North Carolina and state legislative lines in the Old Dominion), challengers of the lines say legislators “packed” the districts with minority voters. The practice of making some districts heavily populated with minority voters gives a minority candidate a better chance of winning that district, critics say, but then makes other districts so overwhelmingly white that a minority contender wouldn’t have a good shot there.

Another redistricting case—not yet before the high court—could mark the first time in more than a decade that Supreme Court justices weighed in on partisan gerrymandering. The courts have generally given a lot of leeway in allowing state legislators to draw lines to partisan advantage, says Michael  Kimberly, a partner in Mayer Brown’s Supreme Court & Appellate practice who is arguing the case for the plaintiffs. The Maryland complainants make an unusual First Amendment challenge, arguing that lawmakers unconstitutionally used information about people’s party registration to redraw lines for the sixth district. The new lines added suburban neighborhoods to the otherwise rural, GOP-leaning areas, making it a winnable seat for Democrats, Kimberly says.

On race, too, the high court is weighing in on issues that became bitter points of contention this election cycle: whether African- Americans and Latinos are fairly treated by the system. In one case, Pena-Rodriguez v. Colorado, a Hispanic man claims he did not receive a fair trial because one of the jurors reportedly insisted that the man’s ethnic background made him guilty.

"Even though there is no serious evidence of serious voter fraud, if the public is afraid of voter fraud, the state may have the right to put the laws in place." Henry L. Chambers Jr., Constitutional Law Professor at the University of Richmond School of Law

Miguel Pena-Rodriguez was arrested for allegedly fondling two teenage girls at a racetrack. The case relied heavily on the girls’ identification of him as the molester, and he had an alibi: another Latino who said he was in another barn with Pena-Rodriguez at the time. The jury initially deadlocked, then convicted him on lesser charges after deliberations so loud and angry that people could hear the shouting outside the jury room.

A juror later told attorneys that one of their group, a former police officer, said Pena-Rodriguez had to be guilty “because he's Mexican,” that “Mexican men … think they can ʻdo whatever they want’ with women,” and that where he used to patrol, “nine times out of 10 Mexican men were guilty of being aggressive toward women and young girls.” The juror also reportedly said that the alibi witness was not credible because “he’s an illegal,” even though the witness said he was in the country legally.

The case—which recalls the controversy of Donald Trump calling Mexican immigrants “rapists”—raises the legal question of whether a court inquiry into alleged racial bias among the jury interferes with the integrity of the jury system and its longstanding tradition of independence and secret deliberations. The court could also decide that a racially biased juror violates defendants’ right to a fair trial.

“The stakes are ‘high’ on both sides of that” case, Coale says. Courts typically “take enormous pains in making sure lawyers don’t stick their noses” into jury deliberations and their sacrosanct privacy. But defendants also rightfully say, “I’m entitled not to have a bunch of racists on my jury,” he adds.

In another case, Buck v. Davis, an African-American man was sentenced to death after an expert witness— oddly offered up by the defense—said the convicted killer was more likely to present a future danger because of his race. In Texas, juries in the sentencing phase of a capital murder are required to prove “future dangerousness” unanimously before they can sentence someone to death. The case goes before the Supreme Court on a highly technical matter: whether the defense is procedurally barred from raising a claim of ineffective counsel. But the case also dredges up the painful and sometimes deadly clashes during the 2016 campaign season over the Black Lives Matter movement and whether police have an inherent bias against African-American citizens.

They are all issues that could exacerbate national debate over race, equal justice, and the integrity of the election system. But ideally, experts say, the high court will serve the role it is intended to serve: that of an independent arbiter that calms the emotions whipped up by campaigns and elections. “Some would argue that the court did put their hands on the scale and tipped it,” says Randolph M. McLaughlin, professor of law at the Elisabeth Haub School of Law at Pace University and co-chair of the civil rights practice at Newman Ferrara LLP in New York. But “the court could put some of these divisive issues to rest.”

In many ways, that has happened in recent years with the court’s ruling on same-sex marriage and other social issues that dominated prior political campaigns. This year may well see whether the acrimony that dominated the campaign trail finds its way into the hallowed halls of the nation’s highest court.