In a historic ruling with major impact on future elections to the U.S. House of Representatives and to the Presidency, the Supreme Court on Tuesday firmly rejected a sweeping and deeply controversial theory that would have given state legislatures unchecked power to displace voters’ choices for those offices.
The 6-to-3 decision may also bolster the power of state courts to curb the long-standing practice of “partisan gerrymandering” – that is, drawing up new election district maps to assure a clear advantage for one party’s candidates.
In addition, the ruling amounted to a rejection of the use of the so-called “independent state legislative theory” by former President Donald Trump and his allies in attempting to overturn his defeat in the 2020 elections. That effort may soon result in federal criminal charges by a special federal prosecutor – independent of the Supreme Court case.
Tuesday’s ruling also may help the Court ease some of the pressure for reform of its structure or powers from some of its current critics among the nation’s liberal or progressive community, deeply aroused by repeated actions by the current conservative majority. The new decision showed the power of Chief Justice John G. Roberts, Jr., to help steer a majority away from the most contentious outcomes to try to protect its legitimacy and its powers.
The bottom line of Tuesday’s decision was this: the Court said the national Constitution does not give state legislatures the authority to ignore state constitutional limits or state courts when those legislatures write laws to govern how federal elections are run. The Constitution’s grant of power to run elections for federal offices does not shut out the state courts or the state constitutions, according to the decision.
The Court, though, did say there are some limits (which it did not define precisely at this time) on how state courts could use the powers that Tuesday’s ruling protects. Federal courts, it said, could review state courts decisions in this field to assure that they do not intrude too greatly on legislative power in writing election laws. That part of the ruling had the clear appearance of a compromise necessary to get six votes, across the ideological spectrum, for the results.
In order to decide the case, the majority stretched its own power of judicial review, reviving a lawsuit that many (including the Biden Administration) had told the Court was no longer a “live” controversy – in other words, had advised the Court that the case now was legally dead (“moot”). The Court said the case still involved a current and genuine controversy, thus giving itself the option to decide it. That is what caused three conservative Justices to dissent.
The Chief Justice, himself a conservative, put together a majority by gathering the support of two of his conservative colleagues, Justices Amy Coney Barrett and Brett M. Kavanaugh, and of the Court’s three liberal members, Justices Ketanji Brown Jackson, Elena Kagan and Sonia Sotomayor. Kavanaugh wrote a fairly short opinion of his own, but he did not dispute any part of the Roberts opinion for the majority.
The Court’s other three conservatives – Justices Samuel A. Alito, Jr., Neil M. Gorsuch and Clarence Thomas – dissented. In an opinion written by Thomas and joined in full or in its most important part by those other two, they argued that the case was now a dead letter legally and the Court thus had to manufacturer a power to be able to rule. That is not what federal courts are supposed to do under the Constitution’s Article III, setting up the federal courts, they said.
Those three Justices had made clear in prior public statements that they were somewhat sympathetic to the idea that the Constitution may give state legislatures broad and maybe unchecked power to write laws on federal election procedures.
The ruling came in a North Carolina “partisan gerrymandering” case involving elections to the House of Representatives. North Carolina is a politically split state, with the two major parties each generally drawing support from about half of the voting population. After the 2020 Census required new districting maps, the Republican-controlled legislature in 2021 drafted maps giving the Republicans a chance to control 10 of the 14 seats.
The state Supreme Court struck down those districts, ruling that their heavily partisan nature violated the state constitution. New maps were drafted by a state court for use in only one election – in 2022 – and resulted in a 7-to-7 party lineup in the state’s delegation in the House.
It was the state court’s ruling striking down the 2021 legislatively drawn maps that was the decision that the Justices formally upheld in Tuesday’s decision.
Since the case began unfolding in the Supreme Court in Washington, the 2022 elections changed the makeup of North Carolina’s highest court, and it reopened the House maps controversy. It went on to rule that the state constitution gives state courts no role in the redistricting process. In that most-recent decision, the state court said nothing about the federal constitutional issue that remained pending before the Supreme Court.
That was the ruling that had led a number of lawyers, on invitation from the Supreme Court, to offer their advice that the case before them no longer involved a real controversy – advice that the majority did not accept on Tuesday.
It will be up to the state Supreme Court to decide now how to react to Tuesday’s decision. The state court, though, is faced with the reality that the decision striking down the 2021 maps drawn by the legislature has now been upheld by the Supreme Court, at least to the extent that the legislature must abide by state constitutional limits on its redistricting powers.
The new decision by the Justices gave the state court no guidance on what should or could come next. Presumably, the state court will now decide whether to take any action at all in response to the new ruling, including whether to leave it to the legislature to return to the task of drawing districts for elections to occur in 2024 and beyond.
An interesting fact about the Justices’ new ruling, on both the outcome and its power to decide this case, is that it is a kind of tribute to one lawyer — Washington, D.C. attorney and law professsor Neal K. Katyal. While most others told the Court the case was “moot,” Katyal made an argument that it was not, and also urged the Court to go ahead and rule now because the issue would continue to arise in future elections and would affect hundreds of existing state laws. He represented the liberal advocacy group, Common Cause, in opposing the controversial theory at issue.
Katyal is well-known in legal circles as one of the most talented and creative of experienced lawyers regularly appearing in the courts. He is also now a favorite as a guest on television talk shows, especially on MSNBC — a liberal cable TV network. He previously had served as acting U.S. Solicitor General — the government lawyer to whom the Supreme Court regularly turns for independent legal advice.
