WASHINGTON — The U.S. Supreme Court on Monday gave Democrats a short-term win on congressional voting maps — and fresh cause for worry about the future of the country’s election laws.
Over three dissents, the justices left in place a court-drawn North Carolina map that could help Democrats win a handful of races in the November election. The map replaced a Republican-crafted one that the North Carolina Supreme Court concluded was so partisan it violated the state constitution.
But along the way, four conservatives justices said they wanted to consider a far-reaching legal theory that would shift more federal election power to the state legislatures that are now disproportionately controlled by the GOP.
Known as the “independent state legislature doctrine,” the approach contends the U.S. Constitution sharply limits state supreme courts in striking down gerrymandered maps and discriminatory voting laws. It would give the U.S. Supreme Court authority to police those limits and to decide when state courts have trespassed on the province of their lawmakers.
The theory “would be a massive and highly disruptive change, and would give the Supreme Court unprecedented authority over election law,” said Carolyn Shapiro, a Chicago-Kent College of Law professor who has written a new law review article criticizing the approach.
The Supreme Court has already cut off key avenues for challenging election laws and districts, narrowing the Voting Rights Act in a series of recent decisions and saying in 2019 that federal judges can’t throw out maps for being too partisan. Those decisions were largely Republican victories, backing rules that Democrats and civil rights groups say undercut the clout of minority and liberal voters.
The independent state legislature doctrine focuses on the Constitution’s elections clause, which says the rules for congressional races “shall be prescribed in each State by the Legislature thereof” unless superseded by Congress.
Three justices, led by Samuel Alito, said Monday the North Carolina Supreme Court probably ran afoul of that provision by rejecting a map drawn by the General Assembly. Alito faulted the state court for relying on provisions of its constitution that don’t explicitly refer to partisan gerrymandering.
“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,” Alito wrote from himself and Justices Clarence Thomas and Neil Gorsuch.
Another justice, Brett Kavanaugh, said the court should consider the issue, possibly in its next term. His vote would give the court the four it needs to take up a case.
Critics of the approach say it can’t be squared with the original understanding of the clause. They contend the Constitution’s framers understood “legislature” as incorporating constraints imposed by state constitutions and courts.
Research shows the theory is “unmoored from history,” Shapiro said. “I would hope that originalists, like Justices Thomas and Gorsuch, would rethink their positions in light of that evidence.”
The court’s conservatives flirted with the independent state legislature doctrine during the litigation surrounding the 2020 election, invoking it to criticize decisions by both state and federal judges to extend deadlines for the receipt of mail ballots.
“The text of the Constitution requires federal courts to ensure that state courts do not rewrite state election laws,” Kavanaugh wrote in a Wisconsin case in October 2020.
Adoption of the doctrine would threaten the use of independent redistricting commissions — and a 2015 Supreme Court precedent allowing them. In that case, a 5-4 court rejected Republican arguments that an Arizona commission, approved by voters in a ballot initiative, violated the elections clause.
“It would be perverse to interpret the term ‘Legislature’ in the elections clause so as to exclude lawmaking by the people, particularly where such lawmaking is intended to check legislators’ ability to choose the district lines they run in,” Justice Ruth Bader Ginsburg wrote for the majority.
The dissenters included Roberts, who said Arizona voters could turn to Congress or push a constitutional amendment.
“The people of Arizona have concerns about the process of congressional redistricting in their state,” Roberts wrote. “For better or worse, the elections clause of the Constitution does not allow them to address those concerns by displacing their legislature.”
