Atiba Ellis, J.D. – Professor of Law, Case Western Reserve University School of Law

Dear Colleagues:

Our next “Friday Lunch” topic was described fairly well in Politico back in September:

“Supreme Court to hear 2 cases with major implications for 2024

The Court’s new term starts in October and includes significant voting cases.

By Zach Montellaro

09/29/2022 04:31 AM EDT

A pair of cases about to reach the Supreme Court could reshape the 2024 election.

One lawsuit out of North Carolina could have broad ramifications, with Republicans asking the Supreme Court to revoke the ability of state courts to review election laws under their states’ constitutions. The reading of the Constitution’s Elections Clause that underpins the case — called the “Independent State Legislature” theory — has gotten buy-in from much of the conservative legal world, and four Supreme Court justices have signaled at least some favorability toward it.

The decision in the case could upend American elections. And another case out of Alabama that will be heard on Tuesday involves a challenge to the state’s congressional map — and whether Black voters’ power was illegally diluted. The result could kick back open congressional redistricting in several states two years after the entire nation went through a redraw.

Practically, the results of the cases could open the door to even more gerrymandering by legislators around the country, and they could also give legislatures even more power within their states to determine rules for voting — including how, when and where voters could cast their ballots…”

The two general stakes in these cases are whether the Court will continue to narrow use of the Voting Rights Act to limit state election policies, and whether something called the “independent state legislature” theory means that state legislatures cannot even be limited by state constitutions as interpreted by state supreme courts. In the Alabama case, Merrill v. Milligan, the immediate issue is whether the state should have created two majority-minority districts, reflecting the black share of state population, since that could have been done without violating other redistricting principles. In the North Carolina case, Moore v. Harper, the immediate issue is whether the state Supreme Court had authority to strike down the legislature’s redistricting plan on the grounds that it violated the state constitution, but the same logic applies to many other situations, such as all the state courts that altered voting procedures in 2020 to prevent the pandemic from drastically reducing turnout, or when ballot initiatives have set state election law.

At the extreme end of possible consequences, the “independent state legislature” theory was the justification for the argument that state legislatures could decide after the 2020 election to appoint presidential electors supporting President Trump even though he had lost the state popular vote – though even most of the theory’s supporters would not go so far.

In short, these are two extremely important cases. They are so important that we basically left them out of the presentations on this year’s Supreme Court term by Professors Jonathan Adler and Jon Entin. Instead, it is a great pleasure to introduce Atiba Ellis, a leading expert on election law who joined our School of Law faculty in January, to explain the cases and their stakes.

In-Person and Virtual Attendance

In order to make it easy for people to protect themselves and still participate, the meetings can be attended on Zoom. Participants can register for each meeting in the same way they did for the past two years. The link is posted below.

The discussion begins at 12:30 p.m., but the room should be open no later than Noon. We try to have beverages and refreshments set up soon after that. Participants should be able to sign on to Zoom also by Noon. But please remember not much will be happening online until the talk begins at 12:30 pm. Please also be prepared to show identification when entering Kelvin Smith Library.

Zoom participants should speak up when asked for questions or comments, or submit thoughts through Zoom’s chat function. Please keep yourself muted until you are choosing to speak.

Each week we will send out this newsletter with information about the topic. It will also include a link to register (for free) for the discussion. When you register, you will automatically receive from the Zoom system the link to join the meeting. If you do not get the newsletter, you should also be able to get the information each Monday by checking http://fridaylunch.case.edu Then if you choose you can use the contact form on that website to request the registration link.

This week’s Zoom link for registration is:

https://cwru.zoom.us/meeting/register/tJwlduiupjssHtSyNVuPYSAjCYzIke2PAb1N

After registering, you will receive a confirmation email containing information about joining the meeting.

Please also e-mail padg@case.edu if you have questions about arrangements or any suggestions. Or call at 216 368-2426 and we’ll try to get back to you. We are very pleased to be partnering this semester with the Siegal Lifelong Learning Program to share information about the discussions.

Best wishes for safety and security for you and yours,

Joe White
Luxenberg Family Professor of Public Policy and Director, Center for Policy Studies

About Our Guest

Atiba Ellis, J.D. is a professor of law at the Case Western Reserve University School of Law. Professor Ellis previously taught at the Howard University School of Law, the West Virginia University School of Law, and the Marquette University Law School. He received his BA, MA, and J.D. from Duke University.

Professor Ellis has published dozens of law review articles and multiple book chapters on matters of race, voting rights, and election law and has a book project in the works consolidating and expanding upon his research concerning the role of race and disinformation in debates over voter eligibility and voting fraud. He is also one of the contributing authors to the forthcoming edition of the late Harvard Professor Derrick Bell’s landmark casebook Race, Racism, and American Law. Professor Ellis’ scholarly works have been widely cited, and in light of his extensive publication record and excellent reputation, he is a frequent public commentator and is routinely invited to participate in academic symposia and forums on issues related to voting rights and race.

* Kelvin Smith Library requires all entrants to show identification when entering the building, unless they have a university i.d. that they can magnetically scan. We are sorry if that seems like a hassle, but it has been Library policy for a while in response to security concerns. Please do not complain to the library staff at the entrance, who are just doing their jobs.

Schedule of Friday Lunch Upcoming Topics and Speakers:

Note: We are still working to create the schedule for the semester. In addition to the programs listed below, a few others are nearly arranged. Please contact me at joseph.white@case.edu to suggest other topics – especially if you can suggest speakers!

March 17: Spring Break

March 24: Thinking About Gender and Transgender Identities. With Angela Clark-Taylor Ph.D., Executive Director, Flora Stone Mather Center for Women.

March 31: The Electricity Grid of the Future: Challenges and Opportunities. With Kenneth A. Loparo, Ph.D., Arthur L. Parker Endowed Professor Emeritus, Department of Electrical, Computer, and Systems Engineering.

April 7: TBD

April 14: TBD

April 21: TBD

April 28: China. With Paul E. Schroeder Ph.D., longtime Visiting Assistant Professor of Political Science.