Supreme Court declines two states’ attempt to block court-drawn congressional maps

WASHINGTON (CN) — The Supreme Court Monday declined two emergency applications from Republicans in North Carolina and Pennsylvania who are attempting to thwart court-mandated congressional maps. 

Last month, Republicans from North Carolina’s general assembly asked the court to overrule a state Supreme Court ruling that condemned their congressional map for partisan gerrymandering. The assembly advanced a controversial theory known as the state legislature claim that would strip state courts of their power over federal elections. Not a week after the North Carolina application, a similar request came in from Pennsylvania. 

The majority offered no explanation for their ruling in either case, but on the North Carolina application, Justice Samuel Alito wrote a dissent joined by Justices Clarence Thomas and Neil Gorsuch. 

“We will have to resolve this question sooner or later, and the sooner we do so, the better,” Alito wrote. “This case presented a good opportunity to consider the issue, but unfortunately the Court has again found the occasion inopportune.” 

Alito said the case presented a recurring question that was of national importance. 

“This case presents an exceptionally important and recurring question of constitutional law, namely, the extent of a state court’s authority to reject rules adopted by a state legislature for use in conducting federal elections,” Alito wrote. “There can be no doubt that this question is of great national importance.” 

Claiming the case easily satisfied the court’s criteria for a grant of certiorari, Alito said the case would likely also prevail on the merits if review was granted. Alito leans into arguments made by the assembly, which argues that the Elections Clause gives state legislatures supreme power over federal elections. 

“Both sides advance serious arguments, but based on the briefing we have received, my judgment is that the applicants’ argument is stronger,” Alito wrote. “The question presented is one of federal not state law because the state legislature, in promulgating rules for congressional elections, acts pursuant to a constitutional mandate under the Elections Clause.” 

Justice Brett Kavanaugh wrote a concurring opinion in which he used the Purcell principle to claim the cases were brought too close to the election. Kavanaugh previously used this explanation in an Alabama case. 

“In their emergency application, however, the applicants are asking this Court for extraordinary interim relief — namely, an order from this Court requiring North Carolina to change its existing congressional election districts for the upcoming 2022 primary and general elections,” the Trump appointee wrote. “But this Court has repeatedly ruled that federal courts ordinarily should not alter state election laws in the period close to an election.” 

However, Kavanaugh expressed sympathy with the argument from the assembly and seemed to hint that he would support review on the independent state legislature claim next term. 

“I agree with Justice Alito that the underlying Elections Clause question raised in the emergency application is important, and that both sides have advanced serious arguments on the merits,” Kavanaugh wrote. “The issue is almost certain to keep arising until the Court definitively resolves it. Therefore, if the Court receives petitions for certiorari raising the issue, I believe that the Court should grant certiorari in an appropriate case — either in this case from North Carolina or in a similar case from another State.” 

Election experts warn that this new radical theory would give state legislatures more partisan control over elections. The theory dates back to Bush v. Gore and was also used in challenges to the 2020 election. Beyond control over congressional maps, some experts warn it could give state legislatures control over who wins elections. 

“It puts American democracy in even greater jeopardy than it has been because it would enable partisan legislatures … to decide not just where district lines are drawn, but whether to accept the results of elections,” Michael Dorf, a constitutional law professor at Cornell University, said in a phone call last week. 

Following the court’s order, Neal Katyal, the former acting solicitor general of the U.S. who filed an amicus brief in the case with Southern Coalition for Social Justice, said the decision aligned with the court’s precedents and allows elections to proceed with court ordered maps. 

“By denying this stay, the U.S. Supreme Court has recognized in line with many precedents that there is no constitutional basis for attempting to rewrite the North Carolina Supreme Court’s decision at the 11th hour,” Katyal said in a statement. “By leaving intact the decision by the North Carolina Supreme Court, the U.S. Supreme Court has paved the way for elections to proceed with the legislative and Congressional maps as ordered by the state courts.”

Follow @KelseyReichmann

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