Supreme Court stays out of election law, for now

March 7th, 2022

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 the Republican state legislature sought to block decisions issued by state supreme courts in both states based on the respective state constitutions.

Within the last month, state courts in both North Carolina and Pennsylvania drew new congressional district maps after after finding 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.

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.” They 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 three justices in Bush v. Gore, the case in which the Supreme Court decided the 2000 election in favor of President George W. Bush.

That said, it is was the words of the modern day conservative majority’s 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. And yet, on Monday the justices ducked the question, at least for now.

The case from Pennsylvania

While the court did not explain its refusal to review either case, it may be because other issues made the cases problematic. For instance, Common Cause, a voting rights group defending the state court’s map, asked the justices to reject the case, noting that the North Carolina state legislature expressly authorized state courts to adjudicate election law cases. Consequently, they argue, the state court’s decision would stand even if the court adopted the independent legislature theory.

In Pennsylvania, Republican-aligned groups in the state court litigation have not yet appealed the state supreme court’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 to elected statewide. In short, the Pennsylvania case is in a messy procedural posture, and that may have dissuaded the justices from getting involved.