Could SCOTUS Hear PA Elections Case?

U.S. Supreme Court

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. Carterthat 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.


3 Responses

  1. If the Scalia Court takes this up, to promote that Cockamamie Ultra Righting Nutjob “Independent State Legislature” theory? There will be a revolution of public opinion, and there WILL be 13 Justices by January. And Sanity will return to SCOTUS.

  2. “The map is more favorable to Democrats than the ones drawn by the legislature.”

    Translation: the map was fairly generated in a non-partisan manner, unlike the gerrymandered clusterf*ck produced by the PA GOP.

    The gerrymandering violates equal protection.

    1. The problem with your comment is that nowhere in law (state or federal) does it say that courts decide the legislative maps. The (partisan elected) courts cannot continue to draw maps and expect them to be viewed as constitutional in any sense.


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