Last week, the Supreme Court issued two emergency orders on cases involving the authority of state legislatures to draw congressional districts. The cases, Moore v. Harper in North Carolina and Toth v. Chapman in Pennsylvania, concern maps originally drawn by a Republican-led legislature and replaced by a Democratic-led state supreme court. The immediate upshot of these emergency orders is that midterm elections in those states will proceed uninterrupted, using congressional districts selected by courts rather than legislatures. But several justices suggested that the Court could soon resolve the underlying tension between the authority of a state’s legislature and judiciary to regulate congressional elections.

Early last November, the North Carolina general assembly adopted a plan that would give a likely edge to Republicans in ten out of the state’s 14 House races. A Democratic-led coalition of voters and nonprofits challenged the districts in state court, alleging it was illegally gerrymandered to favor Republicans, in violation of state law. The North Carolina supreme court ultimately agreed in a 4–3 party-line vote, nullifying the legislature’s map and remanding the case to the trial court to adopt a new map. The lower court again rejected the legislature’s submission, opting instead to adopt one created by court-appointed experts, which was less friendly to Republicans.

Meantime, in January, the Republican-led Pennsylvania general assembly approved a congressional map that gave Democrats a 9–8 edge over Republicans, but Democratic governor Tom Wolf nonetheless vetoed it. Before the legislature approved that map, the Elias Law Group, a progressive firm specializing in election issues, filed suit in state court, seeking to have the court adopt an alternate map (the “Carter Plan”) that would likely give Democrats a 10–7 lead and ensure the ouster of at least one incumbent Republican, as two were placed in the same district, in that scheme. On February 2, in a 5–2 party-line vote, the Pennsylvania supreme court assumed extraordinary jurisdiction over the case, ordering the trial court judge to serve as special master. Though she recommended the state adopt the general assembly-approved map, on February 23, the high court nonetheless decided 4–3 to impose the Carter Plan and ordered election officials to issue a modified election calendar.

Republicans in both states petitioned the Supreme Court to stay the state judicial orders, which would have reinstated the legislatures’ maps. Time was of the essence because of fast-approaching deadlines in the primary calendar. But in two terse orders from its “shadow docket,” the Court has declined, effectively leaving in place maps selected by judges for this year’s midterms.

Republican claims rested largely on a plain reading of the Constitution. Article I, Section 4, known as the Elections Clause, provides that “the Legislature” of each state has authority to prescribe “the Times, Places, and Manner” of congressional elections, subject to federal laws passed by Congress. Under the so-called independent state legislature understanding of this clause, neither state constitutions nor state courts can restrict legislatures’ free hand in federal redistricting. The Elections Clause does not authorize state courts to draw or choose districts, the argument goes, and second-guessing the will of the legislature in court contradicts what the Constitution expressly says.

Four justices opted to explain their vote in the North Carolina case. Justice Brett Kavanaugh concurred, writing that the “important” question presented deserves full consideration, but that the Court’s presumption against adjusting election rules shortly before a race controlled for purposes of the emergency order. Justice Samuel Alito, joined by Justices Clarence Thomas and Neil Gorsuch, dissented. “The exceptionally important and recurring question of constitutional law,” Alito wrote, demands that the Court resolve the matter expeditiously. The Constitution’s specific grant of authority to legislatures, he continued, means that “there must be some limit on the authority of state courts to countermand actions taken by state legislatures when they are prescribing rules for the conduct of federal elections.”

Now that four justices have weighed in—the same number needed to grant review through the ordinary “merits” docket—the Court is likely to take up the issue of what state judicial checks, if any, can be imposed on legislatures when redistricting House seats. Some commentators have excoriated the independent state legislature doctrine as a “crackpot theory” designed to “entrench Republican lawmakers in power.” Yet Republicans are hardly the only ones who would benefit from the doctrine—it would also enshrine the blatant gerrymander enacted by Democratic supermajorities in New York, cutting off state Republicans’ only possible recourse for change. That’s not to condone Republican efforts to craft favorable districts in states like Texas and North Carolina, but merely to observe that those in power seek to retain it.

Granting partisan state supreme courts broad review power over legislatures wouldn’t necessarily lead to fairer outcomes. Members of state judiciaries, even when elected, are often less democratically accountable than legislatures. North Carolina and Pennsylvania’s high court justices serve for eight- and ten-year terms, respectively—longer than lawmakers of both houses in each state. Voters angered by a perceived gerrymander can punish responsible state legislators at the ballot box as early as this November. Yet while the prospect of broad state judicial review creates uncertainty that legislatively approved maps may not actually take effect, a lack of meaningful judicial review risks allowing the majority party to gerrymander with impunity.

No matter how the Court settles this issue in a future case, cries of foul play seem certain.

Photo by Aurora Samperio/NurPhoto via Getty Images


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