The majority that declined the GOP-led requests did not explain its reasoning, which is often the case in emergency petitions before the court.
Three of the court’s dissenting conservatives — Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch — said that they would have intervened, that they thought the theory advanced by the challengers was probably correct and that they are eager to consider such a challenge. Another conservative, Justice Brett M. Kavanaugh, expressed interest, too. But he said it was too close to the May 17 primaries to take up the North Carolina case now. In the Pennsylvania case, the court turned down a request to put a hold on the state Supreme Court’s decision to impose a map. The action by Democratic members of the elected court came after the Democratic governor vetoed a map passed by the legislature, which is controlled by Republicans. The challenge was brought by Republican voters and candidates. In an unsigned order, the U.S. high court said action now was premature, since a federal court is still considering the claim. North Carolina is a purple state, with a legislature controlled by Republicans, a Democratic governor and an elected state Supreme Court with four Democrats and three Republicans. Donald Trump won the state in 2020 by a margin of 50 percent to 49 percent over Joe Biden. Analysts said the map created by Republican legislators after the 2020 Census would have given the GOP an edge in 10 of 14 congressional districts. Democratic justices on the elected state Supreme Court said the redistricting maps had a partisan tilt “not explained by the political geography of North Carolina.”
The court concluded the maps “are unconstitutional beyond a reasonable doubt under the free elections clause, the equal protection clause, the free speech clause, and the freedom of assembly clause of the North Carolina Constitution.” The map it adopted gives the political parties relatively equal chance to win a majority of the seats, analysts said, as does the map adopted by the court in Pennsylvania. Republican North Carolina legislative leaders asked the U.S. Supreme Court to find that under the “independent state legislature” doctrine, state courts had no authority to overrule the legislature’s authority to create congressional districts.
The theory comes from the U.S. Constitution’s election clause, which says that the “Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.”
In the election disputes leading up to the 2020 presidential election, Thomas, Alito, Gorsuch and Kavanaugh expressed support for the view that state courts could not usurp the role of the legislature in prescribing rules for federal elections. In Monday’s opinion, Alito said that he would block the North Carolina court’s adoption of the new congressional map and that he thought the legislature had the better argument. “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,” wrote Alito, joined by Thomas and Gorsuch. “I think it is likely that the applicants would succeed in showing that the North Carolina Supreme Court exceeded those limits.”
If adopted by the court, that would be a drastic change in the way the Supreme Court has seen the role of the state courts. In a 2019 decision, all members of the court — including Thomas, Alito, Gorsuch and Kavanaugh — seemed to envision some role for state courts. In rejecting a role for federal courts in settling partisan gerrymandering lawsuits, Chief Justice John G. Roberts Jr. specified that challenges could go through state courts. “Provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply” in policing partisan gerrymandering, Roberts wrote for the majority in Rucho v. Common Cause.
North Carolina officials defending the state Supreme Court’s actions said that “the claim that state legislatures are solely responsible for state rules governing federal elections — and, thus, that they may ignore requirements imposed by the people of a state through their constitution — simply cannot be the law.” They also said it would cause chaos to change the congressional maps now, with qualifying already underway for the state’s primaries. The U.S. Supreme Court in the past has expressed a reluctance to intrude in election procedures when campaigns are underway. Last month, it allowed an Alabama redistricting map to remain in place after a lower court had said it discriminated against Black voters.
That was Kavanaugh’s point in his opinion Monday. While he said the court should “carefully consider and decide” the independent state legislature issue next term, “it is too late” in the North Carolina case “for the federal courts to order that the district lines be changed for the 2022 primary and general elections.”
