SCOTUS Leaves Fair NC And PA Maps In Place, Will Bone American Elections At Its Leisure Next Year

Yay, and also UGHHHHH.

It was a good news/bad news afternoon at the Supreme Court yesterday, where the majority of justices agreed not to toss out North Carolina and Pennsylvania's court-approved legislative maps. But don't celebrate just yet, because four justices are clearly ready to bone the shit out of elections permanently, and that's enough to get those cases on the calendar next year. Which is not great, Bob .

Like we told you last week, state courts in North Carolina and Pennsylvania rejected Republican gerrymanders based on violations of state law and imposed fair districts in those swing states. As Slate's Mark Joseph Stern points out in an excellent piece about what happened yesterday, this is exactly what the Supreme Court promised would happen when it refused to intercede to stop partisan gerrymandering in 2019. But that was when Justice Ruth Bader Ginsburg was alive, and now that the Court is 6-3, conservatives are off the fucking chain.

The new hotness is the "independent state legislature" theory, and it goes like this:

Article I of the Constitution says that the state legislatures shall direct the “Manner” of elections, and Article II, Section 4 dictates that “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” Ipso facto state legislatures have exclusive control of elections and it is illegal for courts or state executives to do anything about it.

Referendum for non-partisan redistricting? Nope . Courts redrawing maps based on violations of state law? Nope again . Democratic governors vetoing maps produced by gerrymandered Republican legislatures? Out. 

In fact, you don't have to squint to see how this would have allowed Trump to stay in the White House despite losing the election in 2020. Multiple lawsuits argued this very theory, and indeed John Eastman's cockamamie memos were based on the premise that legislatures can do anything they want when it comes to elections, up to and including undoing electoral certificates issued by the Secretary of State and ignoring the will of the voters. 

So North Carolina and Pennsylvania legislatures filed an emergency petition to SCOTUS arguing that the court-mandated maps were UNLEGAL. And guess which three justices were all over that shit?

No points will be awarded for working out that it was Clarence Thomas, Neil Gorsuch, and Samuel Alito, who drafted this dissent for the three of them:

Both sides advance serious arguments, but based on the briefing we have received, my judgment is that the [North Carolina legislators’] argument is stronger. 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. Cf. Bush, 531 U. S., at 113 (Rehnquist, C. J., concurring) (compliance with the Electors Clause “presents a federal constitutional question”). And 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. I think it is likely that the applicants would succeed in showing that the North Carolina Supreme Court exceeded those limits.

And Brett Kavanaugh wrote a concurrence saying he would have done it, too, except that it's too close to the election. "The issue is almost certain to keep arising until the Court definitively resolves it," he wrote, as if this were a longstanding conundrum that had been simmering for decades, not simply a naked power grab by a minority party seeking to entrench its position now that it's stolen the Supreme Court.

It only take four justices to agree to hear a case, so this stinker from North Carolina is definitely coming back around in the regular term (i.e., not on an emergency basis). If these four horsemen of the electoral apocalypse can't pick off Chief Justice John Roberts, then they might have better luck with Amy Coney Barrett. The court's newest justice didn't sign on to Alito's dissent, or Kavanaugh's concurrence. But who the hell knows what she might do next year?

So, it's nice that the electoral maps will get a little more fair this year in the swing states. But these psychos are all the way ready to blow up American democracy, and that is distinctly not nice . 

[ Slate / Election Law Blog ]

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