Republicans in North Carolina and Pennsylvania asked the U.S. Supreme Court in the past week to block congressional maps drawn by their state courts. In doing so, they want the high court to endorse a radical legal theory that could upend redistricting across the country and potentially imperil voting rights.
In North Carolina, Republicans are appealing a map drawn by their state’s Supreme Court after it ruled that the map drawn by the legislature was a partisan gerrymander that violated the state constitution. In Pennsylvania, Republicans are challenging a map drawn by state courts after Gov. Tom Wolf (D) vetoed the map drawn by the GOP legislature.
Both emergency applications claim that the U.S. Constitution gives state legislatures the sole independent right to set the “time, place, and manner” of holding federal elections, and that it provides no role for state courts. That power ranges from the drawing of congressional districts to the writing of election laws regarding voter registration, identification, polling locations and so on.
If adopted, this theory ― known as the independent state legislature doctrine ― would eviscerate one of the last remaining checks on partisan gerrymandering, by cutting state courts out of the role they play in enforcing the election clauses of state constitutions.
“It would be an unprecedented upheaval of the current election laws and foreclose any legal relief for voters when there is legitimate harm found under a state constitution,” said Katelin Kaiser, a voting rights counsel with the Southern Coalition for Social Justice, which is an intervenor in the North Carolina case in support of state courts’ right to enforce the state constitution.
The resulting situation would leave voters with almost no recourse to sue to enforce constitutional provisions or laws against overly partisan congressional maps. The U.S. Supreme Court already ruled in the 2019 case Rucho v. Common Cause that federal courts cannot review partisan gerrymandering of congressional districts.
Instead, “provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply” when reviewing challenges to any state’s congressional district map, Chief Justice John Roberts wrote.
It would also overturn the precedent set in a decision by the late Justice Ruth Bader Ginsburg, in the case Arizona State Legislature v. Arizona Independent Redistricting Commission, that the term “Legislature” in the U.S. Constitution refers to the whole of state government, and not solely the state legislature.
Should the court now approve the challenges from Pennsylvania and North Carolina Republicans, it would both gut the three-year-old Rucho decision and overturn the seven-year-old Arizona Independent Redistricting Commission decision, while leaving state legislatures in a “king-like” position, Kaiser said.
“If we can say only legislatures are able to make laws regarding the time, place, manner of elections, and courts don’t have any ability to change or constrain those laws, we’re really looking at a significant change in the balance of power between the three branches of state governments, as well as the level of intervention from federal courts in state lawmaking,” said Suzanne Almeida, redistricting counsel for Common Cause, a nonpartisan nonprofit involved in both the North Carolina and Pennsylvania cases.
In fact, the same legislators who would place themselves above their state constitutions to draw congressional districts and write election law are themselves elected through state legislative maps they draw. These maps are very often unrepresentative gerrymanders that make it impossible for the majority of voters in the state to elect legislators to represent them.
There is a real possibility that the Supreme Court’s six-member conservative bloc could approve these cases and endorse the independent state legislature doctrine as it applies to congressional redistricting.
During the 2020 election, Pennsylvania Republicans appealed to the U.S. Supreme Court to stay their state Supreme Court’s ruling that allowed mail ballots postmarked by Election Day to be counted if they were received up to 72 hours afterward. The case deadlocked at 4-4, with Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh voting to stay the Pennsylvania court’s ruling and consider the independent state legislature doctrine, while Roberts sided with the three liberal justices against. This decision came down during the period after Ginsburg died and before Justice Amy Coney Barrett took her seat.
While the court did not affirm the doctrine then, Alito ordered Pennsylvania to separate any mailed ballots received in the three-day period after Election Day, in case another challenge to them was brought once Barrett took her seat.
The independent state legislature doctrine came up again in 2020 when both Kavanaugh and Gorsuch affirmed their support for it, in separate concurrences to a 5-3 ruling that blocked a Wisconsin court decision allowing mail-in ballots to be accepted up to six days after the election if postmarked by Election Day.
“Under the U.S. Constitution, the state courts do not have a blank check to rewrite state election laws for federal elections,” Kavanaugh wrote, adding that a state court “may not depart from the state election code enacted by the legislature.”
“The Constitution provides that state legislatures — not federal judges, not state judges, not state governors, not other state officials — bear primary responsibility for setting election rules,” Gorsuch wrote.
Now, with Barrett on the court, it is possible conservatives have the votes to stay the court-drawn maps in North Carolina and Pennsylvania and consider the independent state legislature doctrine more broadly.
The emergency applications ask the court to stay the current court-approved maps on the grounds that the Republicans challenging them have a good chance of winning their argument in a full court hearing. So, while the immediate outcome of such a ruling would likely only result in blocking the court’s maps, it would also suggest that the court’s conservatives find the independent state legislature argument persuasive. The court is likely to rule on the stay applications within the next week.
“Although this is about congressional maps and congressional redistricting, the way they are framing the case in their application would impact voting rights in general on the federal level,” Kaiser said. “So, if the U.S. Supreme Court actually took up this case, we could see fallout in the 2022 election.”