Feb.12

electoral-vote.com

Dem 47

   

GOP 53

Legal Issues in 2026 That Will Shape Democracy

There are at least seven major legal cases coming up this year that will determine whether democracy can survive in America. Here is a brief rundown:

• The Voting Rights Act: The VRA is on its last legs. The Republican appointees on the Supreme Court hate it and they now have a vehicle to put it out of its misery. The case is Louisiana v. Callais. Technically, it concerns the legality of Louisiana's current House districts, but it could be the death knell for what little bit is left of the VRA. When a lower court used the VRA to order Louisiana to draw a new map with two majority-minority districts, a group of white voters sued, claiming the VRA effectively endorsed racial discrimination and thus was unconstitutional. The plaintiffs want the VRA abolished. Chief Justice John Roberts once famously said: "The way to end racial discrimination is to stop discriminating based on race." He is likely to find five other justices to go on this trip together (including one Black one, and that is not Ketanji Brown Jackson). If that happens, a dozen Southern states will immediately redraw their maps to eliminate one or more majority-Black districts in their states, all of which are occupied by Democrats. The main question here is when the ruling comes. If it is March, it could still affect the 2026 elections. If it is in June, it will be too late for that and the new maps won't kick in until 2028. This could determine which party controls the House in 2027 and 2028.
  
  
• Private Enforcement: The VRA does more than ban racial gerrymandering. In fact, for the first few decades of its existence, no one thought it applied to congressional districts at all. It was more about ending Jim Crow practices. While the government has often brought lawsuits based on the VRA, so have private parties. In a bombshell decision in 2023, the U.S. Court of Appeals for the 8th Circuit ruled that private parties have no standing to bring VRA cases. If that decision is upheld, even if the Court does not gut the VRA itself (above), if only the government can bring lawsuits under it and the government has no interest in doing so, the law is de facto a dead letter, even if it remains on the books.
  
  
• Grace: In 15 states, absentee ballots postmarked by Election Day but arriving up to roughly a week later are valid and must be counted. The RNC wants to stop this and require states to shred all ballots arriving after the polls close on Election Day. This would mostly affect low-information absentee voters (who don't understand they must mail their ballot at least a week before an Election Day), and they skew Democratic. If the Court rules for the RNC, that will help the Republicans. However, only a small number of ballots will be affected and states can have massive information campaigns telling voters to get their ballots in the mail before Oct. 15 and if they can't, to personally bring them to a drop box or election office on or before Election Day. Also, this ruling would apply only to federal elections. Ballots for governor and state offices would still be accepted during the grace period.
  
  
• Direct Democracy: Republicans hate referenda and other forms of direct democracy because they allow the voters to bypass carefully gerrymandered state legislatures and pass their own laws and constitutional amendments. So the GOP wants to make it harder to collect enough signatures to get on the ballot and to raise the threshold for passing those initiatives that do make it. Some state constitutions, especially in the West, enshrine direct democracy, but Republicans are hoping the Court will declare the constitutions unconstitutional.
  
  
• Midcycle Redistricting: There has been a flurry of redistricting this cycle. In each state that has done it, there have been lawsuits. The Supreme Court has been forced to wade in on these. In particular, in Missouri, the legislature drew a new map that gave the Republicans an extra seat, but pro-democracy forces are collecting signatures to force a referendum on the new map. State officials are discarding thousands of signatures and doing everything they can do to kill the referendum. Gov. Ron DeSantis (R-FL) is champing at the bit to redraw Florida's map, even though Florida's Constitution bans partisan gerrymandering. In New York and Wisconsin, lawsuits have been filed asking the Court to toss out the existing maps and force new ones to be redrawn.
  
  
• Noncitizen Voting in Local Elections: Some local jurisdictions allow noncitizens to vote for mayor and city council. Federal law bans noncitizens from voting in federal elections, but federal law cannot dictate how states and localities run state and local elections. The U.S. Constitution does not put any restrictions on how states run internal elections. Nevertheless, Republicans don't want noncitizens in the country, let alone voting in any elections. There are multiple cases pending on the subject.
  
  
• Nationalizing Elections: Donald Trump has decided he wants to nationalize elections. He has also issued XOs on many election topics from requiring proof of citizenship to vote to ordering changes to how absentee voting is done. Remember, XOs are instructions to the federal bureaucracy. They are not binding orders to the states. Nothing in the Constitution gives the president any authority whatsoever over elections, but Trump doesn't care about that and he hopes the Court doesn't either.

If all these cases are decided 6-3 in favor of the Republicans, it will be a huge victory for them. However, if Democrats can use their losses here as an argument for "Supreme Court reform," it could energize their voters in November. (V)