The Supreme Court issued a pair of orders late Monday that leave in place maps of Congress drawn by the Supreme Courts of North Carolina and Pennsylvania — though both orders may turn out to be very temporary.
Both orders postpone a big showdown over whether those lawmakers have carte blanche to draw maps of Congress gerrymandered in defiance of their state constitutions. It is moreover probable that the Court will come back to this question fairly soon. But he won’t until the 2022 midterm elections.
Moore v. Harper and Toth vs. Chapman are both cases of redistricting. In Moore, the North Carolina Supreme Court struck down gerrymandered congressional maps drawn by the state’s Republican legislature. In EarlyPennsylvania’s Supreme Court chose a congressional map for that state after its Republican legislature and Democratic governor deadlocked over what the state’s new map should look like.
In both cases, Republican lawmakers asked the U.S. Supreme Court to strike down these court-drawn maps based on the so-called “independent states legislature doctrine,” which claims that the State legislators — and only state legislators — are allowed to determine how states conduct themselves in federal elections.
The doctrine is rooted in a simplistic reading of a Constitutional provision stating that “the times, places, and manner of holding elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof.” In its strongest form, the doctrine of the independent state legislature claims that governors are not allowed to veto election laws (because the governor is not the “legislature”), and state courts are not allowed to strike down election laws affecting federal elections (because the courts are not the “legislature”).
In any case, more than a century of Supreme Court decisions reject this reading of the Constitution. As the Court first explained in Davis v. Hildebrant (1916), the word “legislature”, as used in the relevant constitutional provision, refers to any body empowered to make laws – what the Court called the “legislative power”.
So, while states usually give their governor the power to veto bills passed by the state legislature, the governor can veto election-related bills. While states usually give the people of the state the power to shape laws through a referendum or initiative process, this process can also be used to shape election laws.
There is also considerable evidence that the generation of Americans who drafted the Constitution understood it the same way it was interpreted in Davis.
Just three years ago, the Court upheld this interpretation: Rucho c. Common cause (2019), the Court stated that state courts can apply their state constitution to strike down state election laws. “Provisions of state statutes and constitutions can provide standards and guidance for state courts to apply” in gerrymandering cases, the court explained in Rucho. The Court also suggested that “constitutional amendments creating multimember commissions which shall be responsible in whole or in part for the creation and approval of district maps for congressional and state legislative districts” also be permitted.
Nonetheless, in the run-up to the 2020 election, four justices – Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh – all endorsed some version of the doctrine of the independent state legislature. In particular, these four judges previously concurred with the opinion of the Court in Rucho. But, in 2020, the doctrine of an independent state legislature could have bolstered former Republican President Donald Trump’s chances of re-election.
the Moore and Early the cases won’t do much to clarify if there are five votes to implement this doctrine today. Although the Court did not produce a majority opinion either in Moore Where Early In that case, Justices Alito and Kavanaugh both wrote opinions alluding to how the Court might deal with future cases invoking the doctrine of independent state legislature. Significantly, Judge Amy Coney Barrett — the only member of the court who did not reveal whether she supported the doctrine — said nothing.
Last month, in Merrill v. Milligan, Kavanaugh wrote an opinion strongly suggesting that federal courts should not interfere with state election law during an election year. In Moore, Kavanaugh wrote a brief concurring opinion explaining that he will apply this rule consistently to North Carolina. “It is too late for the federal courts to order that district lines be changed for the 2022 primary and general elections,” Kavanaugh wrote, suggesting he is perfectly willing to change them in the next election.
Alito’s dissenting opinion, meanwhile, would have restored the maps drawn by the North Carolina Republican legislature. Interestingly, however, Alito’s opinion suggests that he does not endorse the strongest version of the independent states legislature doctrine – the version that would exclude state governors and state courts from the process altogether. determining how federal elections should be conducted.
“If the language of the election clause is taken seriously, there must be some limit the power of state courts to override actions taken by state legislatures when they prescribe rules for the conduct of federal elections,” Alito writes, suggesting he prefers to give himself maximum flexibility to overrule decisions. state courts that he disagrees with rather than handing down a clear line rule that could lead to results Alito doesn’t like in a future case.
Alito’s opinion is joined by Thomas and Gorsuch.
In any event, the upshot of these two brief orders is that the 2022 midterm elections will go through the same ordinary process – where state legislatures write laws, governors can often veto those laws. and state courts can strike down these laws if they violate the state constitution – which has governed just about every US election in living memory.
After 2022, however, all eyes will likely be on Barrett.