A grand Supreme Court showdown over gerrymandering ends in a whimper

Republicans face a significant, but temporary, defeat in the Supreme Court.

The Supreme Court handed down a pair of orders Monday evening that leave in place congressional maps drawn by the North Carolina and Pennsylvania Supreme Courts — although both orders could prove to be very temporary.

Both orders defer until a future date a grand showdown over whether these lawmakers have free rein to draw gerrymandered congressional maps in defiance of their states’ constitutions. It is likely, moreover, that the Court will return to this issue fairly soon. But it won’t do so ahead of the 2022 midterm elections.

Moore v. Harper and Toth v. Chapman are both redistricting cases. In Moore, the North Carolina Supreme Court struck down gerrymandered congressional maps drawn by the state’s Republican legislature. In Toth, the Pennsylvania Supreme Court chose a congressional map for that state after its Republican legislature and Democratic governor deadlocked on what the state’s new map should look like.

In both cases, Republican lawmakers asked the US Supreme Court to overturn these court-drawn maps by relying on the so-called “independent state legislature doctrine,” which claims that state lawmakers — and only state lawmakers — are allowed to determine how states conduct 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 independent state legislature doctrine 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 impacting federal elections (because courts are not the “legislature”).

In any event, 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 it is used in the relevant constitutional provision, refers to any body that is empowered to make laws — what the Court referred to as the “legislative power.”

Thus, if states ordinarily give their governor the power to veto bills enacted by the state legislature, the governor may veto election-related bills. If states ordinarily give the people of the state the power to shape laws through a referendum or initiative process, then this process may also be used to shape election laws.

There’s also considerable evidence that the generation of Americans who wrote the Constitution understood it the same way that it was interpreted in Davis.

As recently as three years ago, the Court stood behind this interpretation: In Rucho v. Common Cause (2019), the Court said that state courts may apply their state’s constitution to strike down state election laws. “Provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply” in gerrymandering cases, the Court explained in Rucho. The Court also suggested that state “constitutional amendments creating multimember commissions that will be responsible in whole or in part for creating and approving district maps for congressional and state legislative districts” are also permitted.

Nevertheless, in the leadup to the 2020 election, four justices — Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh — all endorsed some version of the independent state legislature doctrine. Notably, all four of these justices previously joined the Court’s opinion in Rucho. But, in 2020, the independent state legislature doctrine might have bolstered Republican former President Donald Trump’s chance of winning reelection.

The Moore and Toth cases won’t do much to clear up whether there are five votes to implement this doctrine today. Though the Court did not produce a majority opinion in either the Moore or Toth case, Justices Alito and Kavanaugh both wrote opinions hinting at how the Court could handle future cases invoking the independent state legislature doctrine. Significantly, Justice Amy Coney Barrett — the only member of the Court who has not revealed whether she supports 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 penned 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 the district lines be changed for the 2022 primary and general elections,” Kavanaugh writes, suggesting that he is perfectly willing to change them in future elections.

Alito’s dissenting opinion, meanwhile, would have reinstated the maps drawn by North Carolina’s Republican legislature. Interestingly, however, Alito’s opinion suggests that he does not endorse the strongest version of the independent state legislature doctrine — the version that would cut state governors and state courts completely out of the process of determining how federal elections should be run altogether.

“If the language of the Elections Clause is taken seriously, 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,” Alito writes, suggesting that he would rather give himself maximal flexibility to overrule state court decisions that he disagrees with than hand down a bright-line rule that could lead to results that Alito does not 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 run using the same ordinary process — where state legislatures write laws, governors can often veto those laws, and state courts can strike those laws down if they violate the state constitution — that has governed pretty much every single American election in living memory.

After 2022, however, all eyes are likely to be on Barrett.