Supreme Court stays out of key state rulings on partisan gerrymandering, for now

The U.S. Supreme Court refused on Monday to intervene in redistricting disputes in North Carolina and Pennsylvania ahead of the 2022 midterm elections. In both cases, Republican state legislatures sought to block decisions issued by state supreme courts based on the states' respective constitutions.

Within the last month, state courts in both North Carolina and Pennsylvania drew new congressional district maps after finding that their state legislatures failed to adopt plans that met state constitutional and statutory requirements. Republican-aligned groups then asked the U.S. Supreme Court to overturn the state court decisions and adopt a newly advanced — and some say radical — theory that would bar state supreme courts from ruling on election disputes involving federal offices.

On Monday, the court declined both of those challenges, a relief to voting rights advocates but likely only a temporary reprieve, as four of the court's conservative justices indicated their desire to intervene.

A novel legal argument

The argument goes like this: The U.S. Constitution's Election Clause says that the "Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof." The Republican state legislatures read that clause as meaning that only state legislatures may make election rules, unless the federal government passes contrary legislation.

Under this theory, any state court decision requiring the redrawing of state legislative maps is unconstitutional under the federal constitution. That is a dramatically different understanding than has ever been adopted by the Supreme Court. The high court has time and again deferred to state courts as interpreters of state constitutions and state laws, though the seeds of the independent state legislature theory were arguably sowed by three conservative justices in Bush v. Gore, the case in which the Supreme Court decided the 2000 election in favor of George W. Bush.

That said, it was the words of the modern-day conservative majority that drove voting rights groups into state court in the first place. In 2019, the Supreme Court ruled that federal courts may not intervene to prevent partisan gerrymandering of congressional districts. But the decision, written by Chief Justice John Roberts, said explicitly that state courts may enforce limits on gerrymandering under state constitutional and statutory provisions. The Pennsylvania and North Carolina supreme courts then ruled that partisan gerrymandering is unconstitutional under their respective state constitutions.

Nonetheless, in litigation surrounding the 2020 elections a year later, conservative Justices Samuel Alito, Neil Gorsuch, Clarence Thomas and Brett Kavanaugh signaled their strong interest in the independent state legislature theory. Three of them — Alito, Thomas and Gorsuch — dissented from the court's decision on Monday not to entertain the North Carolina case and in their written dissent all but embraced the independent state legislature theory.

Kavanaugh was less definitive, saying only that the issue needed to be considered and decided at a later date. "It is too late for the federal courts to order that the district lines be changed for the 2022 primary and general elections," he said.

Alito, in his dissent for himself, Thomas and Gorsuch, argued that the case presented a good opportunity to consider whether the Election Clause limits what state courts can do, and in this case, he indicated that the state legislature should have prevailed.

The case from Pennsylvania

In Pennsylvania, Republican-aligned groups in the state court litigation have not yet appealed the Supreme Court of Pennsylvania's Feb. 23 selection of an election map — one of 13 presented to the court. Instead, a different group of Republican voters initiated a new case in federal court asking that all of Pennsylvania's members of Congress be elected statewide. In short, the Pennsylvania case is in a messy procedural posture, and that may have dissuaded the justices from getting involved.

Despite Monday's denials, these cases may not be going away. In a brief addendum to the Pennsylvania case, Alito reminded the parties that they may exercise their right to appeal after the lower federal court has properly ruled on the matter. In the North Carolina case, he wrote that review of the Supreme Court of North Carolina's opinion may be warranted in the future, perhaps after the 2022 midterm elections. Meanwhile, Kavanaugh indicated he would vote to take up a similar case outside the emergency posture in which these cases came.

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