The Supreme Court on Monday refused to block orders by courts in North Carolina and Pennsylvania that threw out the congressional maps enacted by the states’ Republican legislatures and replaced them with maps drawn by the trial courts. The justices’ rulings mean that the states’ 2022 congressional elections will go ahead using the court-drawn maps.
But although the justices declined to intervene now, four justices signaled that they believe the court should soon take up the theory at the center of both cases. Proponents of the theory, known as the “independent state legislature” theory, believe that the Constitution gives state legislatures nearly unfettered authority to write the rules for federal elections, with little or no oversight from state courts. A majority of the Supreme Court has never endorsed that theory, and some election-law experts say that, if adopted, it could effectively strip state courts of their power to protect voting rights under state constitutions.
The North Carolina case
The North Carolina dispute, Moore v. Harper, began when the state’s legislature drew a new congressional map based on data from the 2020 census. The map, which was enacted on Nov. 4, 2021, likely would have allowed Republicans to pick up two seats in the state’s congressional delegation – giving them as many as 10 of the state’s 14 seats. Non-profits and a group of mostly Democratic voters challenged the map in state court as an illegal partisan gerrymander that violated the state’s constitution.
On Feb. 4, the North Carolina Supreme Court invalidated the map and sent the case back to a state trial court. The trial court rejected a new map proposed by Republican legislators and instead required the state to use a map that had been created by court-appointed experts. That map would be less favorable to Republicans. On Feb. 23, the state supreme court refused to put the expert’s map on hold.
The Republican legislators came to the Supreme Court on Feb. 25, asking the justices to intervene on an emergency basis and reinstate the legislature’s original map. North Carolina’s election season is slated to kick off soon: The deadline for candidates to file for the upcoming primary was Friday, March 4, while absentee ballots go out March 28 and early voting begins on April 28.
In their appeal to the justices, the legislators relied on the independent-state-legislature theory, which rests on the idea that two clauses in the Constitution give state legislatures the power to regulate federal elections in their states. The Supreme Court is no stranger to the theory. In Bush v. Gore, the 2000 case that halted the recount in Florida in the presidential election, then-Chief Justice William Rehnquist wrote a concurring opinion (joined by Justices Antonin Scalia and Clarence Thomas) in which he explained that, in his view, the state court’s recount conflicted with the deadlines set by the state legislature for the election.
The doctrine surfaced again in 2020, when the Supreme Court rejected a request by Pennsylvania Republicans to fast-track their challenge to a Pennsylvania Supreme Court ruling that required state election officials to count mail-in ballots received within three days of Election Day. In a statement regarding the Supreme Court’s announcement that it would not rule on the merits of the case before Election Day, Justice Samuel Alito (joined by Thomas and Justice Neil Gorsuch) suggested that it was likely that the Pennsylvania Supreme Court’s decision to extend the deadline for counting ballots violated the U.S. Constitution. “The provisions of the Federal Constitution conferring on state legislatures, not state courts, the authority to make rules governing federal elections would be meaningless if a state court could override the rules adopted by the legislature simply by claiming that a state constitutional provision gave the courts the authority to make whatever rules it thought appropriate for the conduct of a fair election,” Alito explained.
The Republican legislators in the North Carolina case urged the Supreme Court to step in to block what they characterized as a “usurpation” of the legislature’s power under the Constitution to regulate congressional elections. If the elections are allowed to go forward under the new, court-created map, the legislators argued, both the legislators and the voters will suffer permanent and irreparable harm. Not only will the courts have seized the legislators’ power, but the voters will have been forced to choose their representatives in Congress through unconstitutional procedures. The legislators also relied on another election-law doctrine, known as the Purcell principle, which is a presumption that courts should not change state election rules shortly before an election.
The Democratic voters and non-profits that had challenged the original map urged the justices not to intervene, thereby allowing the 2022 elections to go forward using the map created by the state courts. Even if the Purcell principle applies to state courts, they said, it is too late to reverse course without causing “enormous disruption.” The Republican legislators, they told the justices, strategically waited to see which map the trial court would approve before going to the U.S. Supreme Court. If the court were to enter a stay, the challengers noted, and the original map were reinstated, candidates could wind up registered in the wrong district because of filing deadlines that have already passed.
This case does not implicate the independent-state-legislature theory, the challengers insisted, because the North Carolina legislature specifically gave state courts the power to do exactly what they did in this case. And issuing a stay, the challengers argued, would “betray” the Supreme Court’s pledge in a 2019 gerrymandering case, Rucho v. Common Cause, that, even if federal courts cannot review partisan gerrymandering claims, state courts can apply state laws and state constitutions to such claims, including claims alleging partisan gerrymandering in congressional districting. And more broadly, they asserted, a stay would call into question the constitutionality of a wider range of state constitutional provisions regulating federal elections — on everything from voter registration to absentee voting – and “invite a flood of challenges” in the 2022 election cycle.
In a brief order on Monday afternoon, the court declined, without explanation, to intervene in the North Carolina case. Alito dissented from that ruling in a four-page opinion that was joined by Thomas and Gorsuch. Alito described the independent-state-legislature theory as “an exceptionally important and recurring question of constitutional law,” and he suggested that the justices “will have to resolve this question sooner or later, and the sooner we do so, the better.” Alito expressed sympathy for the Republican legislators’ position, writing that if the Constitution’s language “is to be 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.”
Justice Brett Kavanaugh agreed with Alito both that the question is an important one and that it is likely to recur “until the Court definitively resolves it.” But in a separate opinion, Kavanaugh agreed with the court’s decision not to intervene now. He explained that “[i]n light of the Purcell principle and the particular circumstances and timing of the impending primary elections in 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, just as it was too late for the federal courts to do so in the Alabama redistricting case last month.” He was referring to Merrill v. Milligan, in which the justices allowed Alabama to implement a redistricting plan that a lower court said likely violates the Voting Rights Act.
The Pennsylvania case
Like the North Carolina case, the Pennsylvania dispute, Toth v. Chapman, originated with the state’s effort to redraw its congressional map after the 2020 census, including to reflect the state’s loss of one of its 18 seats in the House. The state’s Republican-led legislature approved a map that would have created nine likely Democratic seats and eight likely Republican seats, but the state’s Democratic governor, Tom Wolf, vetoed the map. A group of Pennsylvania voters also filed a lawsuit in December 2021, asking the state courts to adopt a different congressional map, known as the “Carter Plan,” that (among other things) would create 10 Democratic-leaning seats instead of nine and place two Republican incumbents in the same district.
In early February, the Pennsylvania Supreme Court – where Democrats hold a majority – intervened in the litigation and instructed Judge Patricia McCullough, the state trial judge to whom the litigation had been assigned, to submit, by Feb. 7, a report recommending both a redistricting plan and any revisions to the election schedule that would be required. McCullough recommended that the state use the legislature’s map. On Feb. 23, however, a divided state supreme court adopted the Carter Plan instead, and it directed state election officials to implement a new election calendar to accommodate the change.
A different group of voters, including at least one, Republican Aaron Bashir, who wants to run for Congress in Pennsylvania but says he doesn’t know who his constituents will be or how he should campaign, went to federal district court in February, seeking to block state election officials from changing the election calendar or implementing any plan selected by the state courts.
After the district court declined to move quickly to block the map ordered by the Pennsylvania Supreme Court, Bashir and the other federal-court challengers came to the Supreme Court on March 1, arguing that the Pennsylvania Supreme Court had violated the Constitution when it ordered state officials to implement a different map than the one that the legislature had created and when it imposed a new schedule for candidates to file for office. The Pennsylvania Supreme Court, they argued, ran afoul of the Constitution’s insistence that only state legislatures, rather than state courts, have the power to regulate federal elections.
The challengers insisted that a ruling in their favor would not mean that courts can never draw a congressional map. “If a legislature has enacted an unconstitutional congressional map,” they wrote, “a court may remedy those constitutional violations by ordering changes needed to bring the districts into constitutional compliance — although it should exercise this remedial discretion carefully and hew as closely as possible to the legislatively approved design.” But the Pennsylvania Supreme Court, the challengers stressed, had instead imposed an entirely different map, despite a federal law that “requires at-large elections when the state has failed to redistrict itself in time for the upcoming election calendar.” The court had also made changes to the election calendar to make sure that the map it had adopted could be used for the 2022 primary elections – which, the challengers contended, was “an appropriation of power that the Constitution specifically assigns to the state legislature.”
Pennsylvania officials urged the justices to deny the challengers’ request, telling them that granting it would be “nothing short of an invitation to chaos.” First, they argued, the challengers lack a legal right to sue, known as standing, because they don’t have a specific injury; all they are claiming is that the courts didn’t comply with the Constitution’s elections clause, which the Supreme Court has said is not enough to allow a lawsuit to go forward. And the Supreme Court has “repeatedly and explicitly upheld the propriety of state courts drawing congressional districts when the legislative process fails to produce one,” the state argued.
But in any event, the state continued, the justices should deny the challengers’ request because they waited too long to file their lawsuit in federal The challengers, the state contended, “should not be rewarded for attempting a legal ambush of the Pennsylvania election.”
The justices denied the Pennsylvania Republicans’ request in a simple two-sentence order. They left open, however, the possibility that the case could return to the court in the not-too-distant future, noting that the case had been referred to a three-judge district court, and that either side could “exercise their right to appeal from an order of that court” granting or denying temporary relief.