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In easy-to-understand terms, how would this ruling affect the different States? Supreme Court to Hear Case on State Legislatures’ Power Over Elections

From what I see, in North Carolina the Senate and House are both a Republican majority, so if the Supreme Court ruling gives state legislatures independent power, that means that they can manipulate district boundaries any way they see fit to win elections. In other states, the party in power might never lose elections again because they can just manipulate their state's boundaries to their benefit.

Is it this straightforward or is it more complicated?

Most importantly, would this affect the Presidential Elections? Assuming the political scenario in 2024 is similar to 2020, would Trump (or any other GOP candidate) win at the swing states that they lost in 2020?

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  • Are you asking for a state-by-state breakdown, or just a general explanation of such a ruling and its potential consequences?
    – Bobson
    Jun 30 at 20:30
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    Since it's based on a North Carolina map that was rejected by the NC supreme court, would the ruling make partisan gerrymander legal? Jun 30 at 20:39
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    @fdkgfosfskjdlsjdlkfsf - Thus far the Supreme Court has only agreed to hear the case. A "ruling" can't happen until the case is heard. Answers to this post might focus on the constitutional issues behind the suit. Particularly, the "independent state legislature doctrine".
    – Rick Smith
    Jun 30 at 21:10
  • "...the party in power would never lose elections..." Never say never, but at least say, gives them a strong advantage to win elections even if they lose the popular vote by a larger margin just by choosing a convenient vote district boundary. It's not more complicated though.
    – Trilarion
    Jul 1 at 8:30
  • If you are going to be textualist about the “independent state legislature” theory, then, if you want to be consistent, you'd really need to realize that Article 1 of the constitution vests Congress with pretty much all the powers of the federal government, and Article 3, doesn't give the courts very much to do. Bye-bye Marbury v Madison
    – Flydog57
    Jul 1 at 16:28

3 Answers 3

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If the court rules in favor of the legal theory being advanced, then state legislatures would have unfettered ability to ignore state constitutions, state laws, and state courts, and to exclude the Governor or independent agencies from making election administration rules relevant to federal elections.

Independent Congressional district redistricting commissions in states that have them would be rendered unconstitutional, giving state legislatures in those states (without having to follow the usually process of approving laws including the Governor's veto power) a chance to redraw electoral boundaries in a patently and openly partisan interest maximizing manner (subject only to federal constitutional restrictions requiring, for example, the districts have equal population, be contiguous and be compact, and the federal statutory requirement that they be single member districts which conduct federal elections on the first Tuesday after the first Monday in November in even numbered years). Review of these districts under federal law would be limited to the federal courts.

As Amy Howe explains at SCOTUS Blog:

The Supreme Court will take up a case from North Carolina next term that could upend federal elections by eliminating virtually all oversight of those elections by state courts. On Thursday, the justices granted review in Moore v. Harper, a dispute arising from the state’s efforts to draw new congressional maps in response to the 2020 census.

The doctrine at the heart of the case is known as the “independent state legislature” theory – the idea that, under the Constitution, only the legislature has the power to regulate federal elections, without interference from state courts. Proponents of the theory point to the Constitution’s elections clause, which gives state legislatures the power to set the “Times, Places and Manner of holding Elections for Senators and Representatives.”

Then-Chief Justice William Rehnquist was an early proponent of the theory. In a concurring opinion in Bush v. Gore, the 2000 case that halted the recount in Florida in the presidential election, Rehnquist (in an opinion joined by Justices Antonin Scalia and Clarence Thomas) outlined his view that the state court’s recount conflicted with the deadlines set by the state legislature for the election.

The issue returned to the Supreme Court in 2020, when the justices turned down 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 an opinion that accompanied the court’s order, Justice Samuel Alito (joined by Justices Clarence Thomas and Neil Gorsuch) suggested that the state supreme court’s decision to extend the deadline for counting ballots likely violated the Constitution.

After the Republican-controlled North Carolina legislature adopted a new congressional map in early November 2021, a group of Democratic voters and non-profits went to state court to challenge the map. They contended among other things that, because the state is roughly divided between Democrats, Republicans, and unaffiliated voters, the new map – which likely would have allowed Republicans to pick up two more seats in Congress, giving them as many as 10 of the state’s 14 seats – was a partisan gerrymander that violated the state’s constitution.

In February 2022, the North Carolina Supreme Court blocked the state from using the map in the 2022 elections and ordered the trial court to either approve or adopt a new map before the end of the month. The trial court adopted a new map, drawn by three experts appointed by the court.

Republican state legislators came to the Supreme Court on an emergency basis in late February, asking the justices to reinstate the legislature’s original map before the state’s primary election, which took place on May 17. But over a dissent by Alito that was again joined by Thomas and Gorsuch, the court turned down the request. Both the Alito dissent and a concurring opinion by Justice Brett Kavanaugh, however, called the “independent state legislature” theory an important question, with Alito adding that the justices “will have to resolve this question sooner or later, and the sooner we do so, the better.”

The legislators returned to the court later in March, seeking review of the North Carolina Supreme court’s decision invalidating the legislature’s map and ordering a new map for the 2022 elections. They told the justices that the state supreme court’s order was “starkly contrary to the” elections clause. The text of that clause, the legislators insisted “creates the power to regulate the times, places, and manner of federal elections and then vests that power in ‘the Legislature’ of each State.” The “independent state legislature” question, the legislators stressed “‘is almost certain to keep arising until the Court definitively resolves it.’” And because North Carolina will use the map created by the court for its 2022 congressional elections, they continued, the justices should resolve the question in this case, rather than having to do it on an expedited basis in a dispute arising after an election has already occurred.

State officials countered that the North Carolina dispute would not resolve the “independent state legislature” question at all, because the state legislature had specifically given the state’s courts the power to impose a temporary redistricting plan – just as the North Carolina Supreme Court did in this case.

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    "Independent Congressional district redistricting commissions in states that have them would be rendered unconstitutional" Would the commissions themselves be unconstitutional or only laws that require the state legislature to use them? It seems like the legislature would be free to choose the map the commission came up with. Jul 1 at 16:53
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    @eyeballfrog The legislature could but by design the legislature is partisan whereas the commission is not. So why would a partisan legislature ever choose an option that tries to be fair to all parties if they can choose an alternate option that favors the current majority?
    – quarague
    Jul 1 at 17:04
  • This "ordered the trial court to either approve or adopt a new map before the end of the month" does seem sketchy. Why couldn't/wouldn't/shouldn't the state supreme court have bounced the issue back to the legislature, instead of the lower court, for another try?
    – Ben Voigt
    Jul 1 at 18:45
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    @BenVoigt I personally think that would be a bad idea because it would overrule existing SCOTUS precedent and many states have taken action in reliance on that precedent. A clear rule of the road is more useful than the "right" answer, in this context.
    – ohwilleke
    Jul 1 at 19:49
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    @ohwilleke Do we still think this SCOTUS gives two flips about any of that? Jul 4 at 2:07
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The clause of the US Constitution at issue is Article I, Section 4, Clause 1 (Elections Clause):

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; ...

The case the Supreme Court has decided to hear is Moore v. Harper. On March 7, 2022, the Court declined to hear the case since only three of the nine justices were in favor. However, on June 29, 2022, a fourth justice decided to hear the case and the case will be scheduled for the term beginning in October 2022.

Issue: Whether a state’s judicial branch may nullify the regulations governing the “Manner of holding Elections for Senators and Representatives ... prescribed ... by the Legislature thereof,” and replace them with regulations of the state courts’ own devising, based on vague state constitutional provisions purportedly vesting the state judiciary with power to prescribe whatever rules it deems appropriate to ensure a “fair” or “free” election.

Central to the case is the "independent state legislature doctrine (or theory)". The term "doctrine" appears to be used by conservatives, while "theory" is used by liberals. By either name, at issue is the meaning of "legislature" in the US Constitution.

If "legislature" means the "representative body", then the legislature's decisions on elections cannot be vetoed by the governor, nor overruled by state courts. If "legislature" means "lawmaking authority", then decisions of the legislature may be vetoed or overruled as specified in applicable law.

In a prior case on a same clause, Arizona State Legislature v. Arizona Independent Redistricting Commission (2015), the Court decided that voters acting through an initiative in place of the legislature (based on "lawmaking authority") could create am independent redistricting commission. The 5-4 decision was written by Justice Ginsberg and joined by liberal justices. The dissent (based on "representative body") was written by Chief Justice Roberts joined by conservative justices.


Q: Is it this straightforward or is it more complicated?

More toward "interesting". It appears the North Carolina legislature, unable to remove the state's prior constitutional and legislative restrictions, is attempting to use the US Supreme Court to invalidate those restrictions. Given the conservative shift in the Court and the Court's willingness to hear the case, it may succeed.

There is no effect for the 2022 mid-term elections. The effect for the 2024 elections will depend on the Court's decision and could affect all states.

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The case in question pertains to North Carolina's map for US congressional districts. Basically, NC gained a seat in Congress and created a new district map. The North Carolina Supreme Court struck it down as too heavily gerrymandered, but they went a step further: they created their own map and submitted it on behalf of the legislature but without their approval to be used in the 2022 US House elections. The NC legislature applied for an emergency stay that was denied by SCOTUS, but they've now agreed to hear the case.

Let's step back a bit and discuss how redistricting actually works. Article I, Section 4 of the US Constitution states:

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.

Congress indeed has made laws covering the election of representatives and senators, and they're codified at 2 U.S. Code Chapter 1 - ELECTION OF SENATORS AND REPRESENTATIVES. Congress theoretically could overrule pretty much any aspect of the election of representatives, but they currently leave pretty much everything up to the individual states.

The NC Legislature's complaint is that it is being denied the right to submit its own map (or at least keep using the old one). At least on the surface, they make an interesting argument, given the famous Supremacy Clause from Article VI the US Constitution.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

So when the US Constitution grants this power to "the Legislature thereof", does that literally mean the state legislature? Or does it mean the state as a whole? Or could it mean something something like "the legislative process"? There has actually been a case somewhat related to this, and it was pretty recent (2015). In Arizona State Legislature v. Arizona Independent Redistricting Commission, a 5-4 majority ruled that Arizona's voters could wrest control over redistricting from the Arizona State Legislature and transfer it to an independent commission against their will. The majority ruled that "state legislature" basically meant the state.

It's probably safe to think of the NC case as an opportunity to overturn this one. Of course, a simple federal law could codify the ability for states to take away redistricting power from their legislatures. But there is no way to do that if the "independent state legislature" doctrine were to also apply to Article II, Section 1 involving presidential elections.

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

SCOTUS will be reluctant to fully endorse the "independent state legislature" doctrine, but they'll probably want to strike down courts submitting their own maps (especially given that NC's Supreme Court is elected just like the legislators).

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