The remaining days of the 2021-22 U.S. Supreme Court session promise to be memorable.
Not only will the Court issue its much-anticipated ruling on Dobbs v. Jackson Women’s Health Organization and its impact on Roe v. Wade, but the justices could also decide to hear a case on the power of state legislatures as it relates to redistricting.
In March, the Court allowed a map selected by Pennsylvania’s Supreme Court to be in effect for the 2022 elections. The map is more favorable to Democrats than the ones drawn by the legislature.
The justices provided no explanation for their actions, as is common in emergency applications on what is known as the “shadow docket.” The Supreme Court generally does not disturb state court rulings that are rooted in state law.
However, four Supreme Court justices — Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh — have said the court should step in to decide whether state courts had improperly taken powers given by the U.S. Constitution to state lawmakers.
“We will have to resolve this question sooner or later, and the sooner we do so, the better. This case presented a good opportunity to consider the issue, but unfortunately the court has again found the occasion inopportune,” Alito wrote in a dissent from the Supreme Court’s order, joined by Gorsuch and Thomas.
The question at hand appears to be that of the theory of the “independent state legislature.”
The independent state legislature theory is a reading of the Constitution, pushed in recent years by a small group of advocates, that would give state legislatures wide authority to gerrymander electoral maps and pass voter suppression laws. It has even been used as political cover to try to overturn elections.
“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.” – United States Constitution, Article 1, Section 4.
On most occasions, the clause has been interpreted that states and their legislatures decide the times and places for elections, but Congress can change these for Senators and Representatives. Republican state legislatures in Pennsylvania and North Carolina read that clause as only state legislatures may make election rules, unless the federal government passes contrary legislation.
Translation. Any state court decision requiring the redrawing of state legislative maps is unconstitutional under the U.S. Constitution.
The theory first appeared on the scene following the disputed 2000 election, as Chief Justice William Rehnquist wrote a concurring opinion in Bush v. Gore proposing a version of the independent state legislature theory. He argued that the Constitution’s assignment of elections authority to state legislatures diminishes state judges’ power to alter “the general coherence of the legislative scheme.” This approach garnered little scrutiny outside academia at the time.
Republicans from both Pennsylvania and North Carolina have filed appeals challenging state court decisions on congressional districts. Former Rep. Ryan Costello is the plaintiff in the Pennsylvania appeal (Costello v. Carter) that is linked with the N.C. case (Moore v. Dunbar).
“A ruling endorsing a strong or muscular reading of the independent state legislature theory would potentially give state legislatures even more power to curtail voting rights and provide a pathway for litigation to subvert the election outcomes expressing the will of the people,” law professor Richard Hasen wrote in an email to the Associated Press.
It only takes four of the nine justices to agree to hear a case. A majority of five is needed for an eventual decision.