The Supreme Court will not overturn a century of pro-democracy precedent and two centuries of historical practice to give state legislatures unlimited power over elections—yet.
That’s the upshot of the court’s orders on Monday in two huge redistricting cases out of Pennsylvania and North Carolina. The court refused to block new congressional maps drawn by the high court of each state, declining—for now—to embrace a radical theory rejecting state courts’ authority over election law. In the process, however, four justices did endorse this theory, and three attempted to blow up North Carolina’s upcoming election in a dissent with terrifying implications for democracy. The court stepped back from the abyss, but the ensuing reprieve may not last for long.
Both of Monday’s orders involve this year’s redrawing of congressional maps. In Pennsylvania, the Republican-controlled legislature drew a GOP gerrymander, which the Democratic governor vetoed. Because of this impasse, the Pennsylvania Supreme Court stepped in to draw new, fairer districts. In North Carolina, the Republican-controlled legislature drew a GOP gerrymander, which the Democratic governor could not veto under state law. Voters challenged the map under the state constitution, and in February, the state Supreme Court struck it down. The legislature drew a new map, which a trial court rejected and replaced with its own, fairer version.
Republicans appealed both court-drawn maps to SCOTUS. They claimed that these plans violated the U.S. Constitution’s elections clause, which says that the “manner” of federal elections “shall be prescribed” by the “legislature.” For at least a century, SCOTUS has read this language to give other organs of state government a say in election law. But conservative scholars have devised a theory known as the “independent state legislature doctrine” that would give legislatures complete control over elections, including voting rules and redistricting. Under this theory, state constitutional provisions governing elections would be null and void, and state courts would have no power to intervene in election disputes. The legislature alone would set the rules—and, in extreme versions of the theory, even dictate the outcome of an election.
The Supreme Court has never endorsed this doctrine, and has explicitly rejected it as recently as 2015. There is a good reason why: It contradicts the original meaning of the elections clause as well as historical practice reaching back to the early days of the republic. A mountain of evidence proves that Framers never intended to give states lone authority over federal elections, and instead expected state constitutions to impose substantive limits on election law. Exhaustive research demonstrates that—aside from a few opportunistic arguments raised by congressional partisans in the 19th century—state legislatures, state courts, federal courts, and Congress have all rejected the doctrine for more than two centuries.
And yet, for nearly two decades, the conservative legal movement, working alongside Republican politicians, has pushed relentlessly to enshrine this theory into law. It nearly succeeded during the 2020 election, when Justices Clarence Thomas, Sam Alito, Neil Gorsuch, and Brett Kavanaugh deployed the theory in an effort to void thousands of disproportionately Democratic ballots. They failed, but their stance encouraged Republicans to try again this year—hence Monday’s cases.
The Pennsylvania challenge was always a tougher sell: The plaintiffs demanded at-large congressional districts for the first time since the 18th century because there was no backup map in place and no time for the legislature to draw one. Moreover, the case invoked the most extreme possible version of the independent state legislature doctrine, which excludes even the governor from redistricting. It was no surprise, then, that the court disposed of that challenge with no noted dissent.
By contrast, the North Carolina case teed up the elections clause issue perfectly, and thus divided the court. Because it’s a shadow docket order, we don’t know exactly how each justice voted, but it appears that Chief Justice John Roberts and Justice Amy Coney Barrett joined the liberals in turning away the challenge without comment. Kavanaugh wrote that Republicans had “advanced serious arguments on the merits” but concluded that it was too late for the federal judiciary to intervene, citing the Purcell principle. Alito, joined by Thomas and Gorsuch, dissented, declaring that the North Carolina Supreme Court had likely violated the elections clause by striking down the legislature’s congressional map.
Alito’s dissent, which wholeheartedly adopted the independent state legislature doctrine, is a master class in disingenuousness. He omitted more than a century of SCOTUS precedent rejecting the doctrine. He ignored the Purcell principle, which he has consistently used to halt lower court orders protecting voting rights. He disregarded the North Carolina legislature’s express approval of judicial supervision over redistricting. And he dismissed the North Carolina Supreme Court’s decision as mere “legislation”—even though the majority engaged in an exhaustive overview of the state constitution’s guarantee that “all elections shall be free.”
“This guarantee of ‘free elections’ dates all the way back to the North Carolina Constitution of 1776,” Alito wrote, “but for 246 years that language was not found to prohibit partisan gerrymandering.” Implying that the court’s Democratic majority was motivated by politics rather than law, he fumed: “Only this year did the State Supreme Court change course and discern in the State Constitution a judicially enforceable prohibition of partisan gerrymandering.” (The long dormancy of a constitutional provision did not stop him from adopting a novel reading of the Second Amendment in 2008.)
Alito also complained that the North Carolina Supreme Court cited state constitutional guarantees of free speech, assembly, and association, which “make no reference to elections.” Unmentioned is the glaring fact that the First Amendment does not mention elections either, yet Alito has repeatedly used it to strike down election regulations. (It seems supporting Republican candidates counts as free speech, while supporting Democratic candidates does not.)
Perhaps the most galling aspect of Alito’s dissent, though, is its hypocrisy. When the court prohibited federal courts from evaluating partisan redistricting in 2019, it assured the nation that state supreme courts could still strike down such gerrymanders. “Our conclusion [does not] condemn complaints about districting to echo into a void,” the court insisted. Alito, Thomas, and Gorsuch joined this opinion. Now they’ve revealed it was a bait-and-switch.
It is mildly encouraging that Kavanaugh did not join this flamethrowing dissent and applied his own rule against intervening on the eve of an election. But he also made it clear that he will vote to take up the North Carolina case next term. That makes four votes to consider the independent state legislature doctrine—all that’s required to put the case on the calendar. It now appears inevitable that, in 2023, the Supreme Court will decide whether state legislatures have unrestricted power to rig federal races for Congress and the presidency. Roberts has already disclaimed the theory, meaning the fate of democracy really is in Barrett’s hands. Her vote on Monday suggests she is hesitant to go along with this scheme. But then again, she might just be picking her battles, since her vote would not have changed the outcome. If Barrett ultimately sides with the four far-right conservatives, the 2024 elections may be decided before they begin.