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Will SCOTUS Remove State Courts from the Redistricting Process?

By Laura Temme, Esq. | Last updated on

Historically, the U.S. Supreme Court has been reluctant to weigh in on redistricting issues, even holding in 2019 that federal courts cannot review partisan gerrymandering claims. But two recent decisions from SCOTUS's notorious "shadow docket," while technically a win for voting rights advocates, signaled that the Court might be gearing up to make a big decision on the issue.

North Carolina

Earlier this year, the North Carolina Supreme Court invalidated a new congressional map drawn by the state legislature that would likely result in Republicans picking up two more seats. On remand, the trial court rejected a new map proposed by the Republicans and required the use of a map made by court-appointed experts.

With North Carolina's primaries fast approaching, Republican legislators appealed to the U.S. Supreme Court on February 25 for an emergency stay. In Moore v. Harperthe Court denied the stay with no explanation. But the dissent, comprised of conservative Justices, called the issue "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."

Read the full Moore opinion and thousands more with a free trial of Westlaw Edge.

Though Justice Kavanaugh agreed that the issue was likely to keep popping up, he did not think that it was appropriate to grant the stay because the applicants were seeking "extraordinary" interim relief.


The Pennsylvania case of Toth v. Chapman begins along the same lines as MooreAfter the 2020 census, the state's Republican-led legislature redrew voting districts in a way that eliminated one of Pennsylvania's 18 House seats, leaving nine likely to be filled by Democrats and eight by Republicans.

Pennsylvania Governor Tom Wolf vetoed the map. Meanwhile, a group of voters filed suit to ask the state courts to adopt an alternative map known as the "Carter Plan." The proposed plan put two incumbent Republicans in the same voting district and created another likely Democratic seat in addition to those in the legislature's plan.

State courts were split on the issue. A state trial judge recommended the state use the legislature's map, but a divided Pennsylvania Supreme Court adopted the Carter Plan. Again, SCOTUS denied the Pennsylvania Republicans' request for an injunction without explanation. However, the Court noted that either party could "exercise their right to appeal" a future decision by the district court to which the case was remanded.

So, in both Moore and Toth, SCOTUS opted not to intervene. But several justices, including Kavanaugh, have indicated that the Court should soon examine the legal theory at the center of these cases—known as the "independent state legislature doctrine."

Will SCOTUS Cut Out Review By State Courts?

Proponents of the independent state legislature doctrine argue that Article I, Section 4, Clause 1 of the Constitution gives authority over elections solely to state legislatures when it 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 [sic] Senators."

Under this interpretation, state legislatures can redistrict however they "chus" without review by a state court. Although the doctrine lacked its current moniker at the time, SCOTUS did touch on the general idea in Bush v. Gorewhere Justice Rehnquist argued in a concurrence that recounts conflicted with deadlines set by the Florida legislature.

Based on Justice Kavanaugh's concurrence in Moore, SCOTUS might just be waiting for the right case to address the independent state legislature doctrine. Recent shadow docket decisions turned on the "Purcell principle"— a doctrine based on the holding in Purcell v. Gonzalez that courts should not change state election rules right before an electionThe justice reasoned that "it is too late for the federal courts to order that the district lines be changed for the 2022 primary and general elections, just as it was too late for the federal courts to do so in the Alabama redistricting case last month."

The Alabama case Kavanaugh refers to was Merrill v. Milligan, where he also wrote that the timing wasn't right for a decision on the merits. "[E]ven heroic efforts likely would not be enough to avoid chaos and confusion," he wrote in a concurrence joined by Justice Alito. If we look back to Moore, challengers argued that the independent state legislature doctrine wasn't implicated at all because the legislature had explicitly given state courts the power to do what they did.

But, if a case comes up far enough ahead of an election to get around Purcell, things could get interesting.

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