A long-time tactic of the left is to try to gain through tame and stump-broke judges what they can’t win at the polls. Redistricting, voting process and other issues are two examples of this. There were many stories about judges changing voting procedures in 2020 based on the false belief that COVID was preventing orderly election conduct. In Wisconsin, we saw nursing homes with a 90+% return of “absentee” ballots when 90+% of the nursing home residents were not capable of casting a vote. It was possible to send mailed ballots after voting had been extended. There were places where ballots were mailed to all voters, no matter if they’d requested them. The governor did not sign these laws. It was due to judges ruling that they have the power to interfere with elections.
We also see redistricting goofballery. Before challenging the congressional districts drawn by constitutional methods, the left waits till the last minute. The decision is then made by a judge, who will invariably rule that Democrats require safer districts.
Two victories were delivered today by the US Supreme Court for Democrats regarding redistricting. North Carolina’s one case and Pennsylvania’s other. Each case involves a state legislature that follows the procedure laid out in the state Constitution being sandbagged a judge with a better idea. These quotes come from SCOTUSBlog.com
North Carolina’s dispute Moore v. Harper, began when the state’s legislature drew a new congressional map based on data from the 2020 census. The map, which was enacted on Nov. 4, 2021, likely would have allowed Republicans to pick up two seats in the state’s congressional delegation – giving them as many as 10 of the state’s 14 seats. Non-profits and a group of mostly Democratic voters challenged the map in state court as an illegal partisan gerrymander that violated the state’s constitution.
February 4, saw the North Carolina Supreme Court declare the map unconstitutional and send the matter back to a state trial judge. Rejecting a Republican-drafted map, the court instead ordered that the state uses a map drawn by court-appointed professionals. The map would have been less favorable to Republicans. On Feb. 23, the state supreme court refused to put the expert’s map on hold.
Similar to North Carolina, the Pennsylvania dispute. Toth v. Chapman, originated with the state’s effort to redraw its congressional map after the 2020 census, including to reflect the state’s loss of one of its 18 seats in the House. The state’s Republican-led legislature approved a map that would have created nine likely Democratic seats and eight likely Republican seats, but the state’s Democratic governor, Tom Wolf, vetoed the map. A group of Pennsylvania voters also filed a lawsuit in December 2021, asking the state courts to adopt a different congressional map, known as the “Carter Plan,” that (among other things) would create 10 Democratic-leaning seats instead of nine and place two Republican incumbents in the same district.
In early February, the Pennsylvania Supreme Court – where Democrats hold a majority – intervened in the litigation and instructed Judge Patricia McCullough, the state trial judge to whom the litigation had been assigned, to submit, by Feb. 7, a report recommending both a redistricting plan and any revisions to the election schedule that would be required. McCullough recommended that the state use the legislature’s map. The Carter Plan was approved by the divided state supreme Court on Feb. 23. This court directed the state’s election officials to adjust their election calendar to reflect the new change.
Both states legislatures appealed the decision to the US Supreme Court.
Pennsylvania’s legislature claimed that the state supreme Court had illegally overthrown the redistricting process and had changed the deadline to file candidates. The US Supreme Court declined to hear the case.
Toth and Chapman by Scribd
The North Carolina case’s refusal indicates that a plurality of this court are far from being satisfied with the judiciary acting as though it was a state legislature. The North Carolina legislature challenged the power of the state supreme Court to intervene in its appeal.
The Republican legislators in the North Carolina case urged the Supreme Court to step in to block what they characterized as a “usurpation” of the legislature’s power under the Constitution to regulate congressional elections. Both the lawmakers and voters are at risk if elections proceed as planned under the court-created map. Not only will the courts have seized the legislators’ power, but the voters will have been forced to choose their representatives in Congress through unconstitutional procedures. Another election-law doctrine was used by the legislators, called “The Purcell principle”, which states that judges should not alter state election rules within a short time before an election.
Justice Alito joined Justice Thomas and Gorsuch in drafting an opinion that was rejected. Even though Justice Kavanaugh does not sign onto Alito’s dissent, he agrees with it but opines it is too late for action on the 2022 election cycle.
Alito Dissent Toth V. Chapman, by Scribd
On Monday afternoon, the court denied without explanation the request to enter into the North Carolina case. Alito was not able to agree with that decision in the four-page opinion. Thomas and Gorsuch were also present. Alito described the independent-state-legislature theory as “an exceptionally important and recurring question of constitutional law,” and he suggested that the justices “will have to resolve this question sooner or later, and the sooner we do so, the better.” Alito expressed sympathy for the Republican legislators’ position, writing that if the Constitution’s language “is to be 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.”
Salon’s legal expert and all-around Jack-Russell-chasing-a-frisbee when it comes to writing about the conservative side of the Supreme Court, Ian Milhiser, sees possible doom.
Both court-drawn maps were appealed by Republicans to the 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. According to this theory, all laws governing elections in a state would become null and unenforceable and the state would not be able to interfere with election matters. 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.
(Editor’s note: you can ignore his links. You can ignore his links.
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. Alito omitted over a century worth of SCOTUS precedent disapproving the doctrine. He did not pay attention to the Purcell He has used this principle to stop lower courts from enforcing voting rights protection orders. 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.)
I think this decision has to be read in line with the Supreme Court’s decision in the recent Alabama redistricting case, see Alabama Appeals the Rejection of Its Redistricting Map and the Left May Get More Than It Wanted or Expected and Why We Shouldn’t Fear Chief Justice John Roberts as More Clouds Loom Over the Future of Racial Gerrymanders and the Voting Rights Act. With various “voting rights” issues, just like with abortion and gun control, the current majority on the court acts as though it would rather create some bright lines for lower courts to follow so the Supreme Court doesn’t get a steady stream of similar cases. In the Alabama case, it was clear that the Supreme Court didn’t want any court challenge to redistricting or voting laws to continue while states were preparing to hold primary elections. The Supreme Court has signaled that it may be getting out of the abortion business (Does Justice Sotomayor’s Intemperate Rant at Her Colleagues Indicate That She Knows Roe v. Wade Is About to Be Overturned?). The challenge to a New York gun control law hinted that many restrictions on the right to carry firearms might be about to go away (Supreme Court Conservatives Maul New York’s Restrictive Concealed Carry Law in First Major Second Amendment Case in a Decade).
Milhiser probably is correct to say that there are only four votes which can severely restrict the power of courts in drawing congressional district lines. Could those four invite Amy Coney Barrett to join them? I suspect, given what we’ve seen so far, that they can. John Roberts can join the majority to write the opinion. This will limit the harm Alito can do.
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