Will SCOTUS Remove State Courts from the Redistricting Process?

The past has been that historically, the U.S. Supreme Court has not been averse to weighing in the redistricting debate, declaring in the year 2019 that federal courts are not able to consider partisan gerrymandering cases. Two recent rulings by the Court’s famous “shadow docket” although technically, they were a victory for those who advocate for the right to vote indicated that the Court could be preparing to take a major decision regarding the issue.

North Carolina

This year it was reported that in the course of this year’s election, North Carolina Supreme Court invalidated the map for Congress that was created by the state legislature which could result in Republicans getting two more seats. Remanded to the court the court of trial rejected the new map submitted by Republicans and ordered to use the map drawn by experts appointed by the court.

The North Carolina primaries are rapidly approaching, Republican legislators appealed to the U.S. Supreme Court on the 25th of February for an urgent stay. in Moore v. Harper,the Court refused to grant the stay without reason. However, the dissenting opinion, composed of moderate Justices who argued that the case was “an very important and frequently recurring legal issue, particularly, the scope of the state court’s power to deny rules adopted by a state legislature , for application in conducting federal elections.”

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While Justice Kavanaugh agreed that the question was going to continue coming up however, he didn’t think it proper to deny stay to the applicants because they sought “extraordinary” temporary relief.


The Pennsylvania case of Toth v. Chapman begins along the same pattern as Moore. In the wake of the 2020 census in the state, the Republican-controlled legislature changed the voting districts to eliminate one of Pennsylvania’s House seats. This left nine of them to be held by Democrats as well as eight seats for Republicans.

Pennsylvania Governor Tom Wolf vetoed the map. A group of citizens filed suit in order for state court to request to approve a different map, dubbed”the “Carter Plan.” This plan was proposed to included two incumbent Republicans within the same electoral district as well as creating a new Democratic seat, in addition to the seats included in the plan of the legislature.

State courts were divided on the matter. A judge from the state court recommended using the state legislature’s map, however a split Pennsylvania Supreme Court adopted the Carter Plan. In the same way, SCOTUS denied the Pennsylvania Republicans in their request for an injunction with no justification. But, the Court said that either side can “exercise their rights to challenge” in the event of a decision made of the district court, to where the case is remanded.

In the cases of Mooreand Toth the Court decided not to join in . But several justices like Kavanaugh has suggested that the Court must soon look into the legal theories in these cases. This is known by”independent state legislature doctrine. “independent law of the state legislature.”

Does SCOTUS intend to eliminate review For State Courts?

The supporters of the independent state legislature claim that Article I Section 4 Section 1 in the Constitution grants authority to conduct elections only to the state legislatures. it says:

“The Dates, Times, and manner of conducting elections of Senators and Representatives will be regulated in each state by the Legislature of that State; however, the Congress can at any point through Law change or amend these Regulations, excluding the places of chusing sic[ sic Senators.”

According to this view the state legislatures may draw up their districts in any way they “chus” without the need for review by an ad hoc court. While the doctrine was not given the current name when it was first introduced, SCOTUS did touch on the concept by deciding Bush v. Gore,where Justice Rehnquist was arguing in a concurring decision that recounts were in conflict with deadlines established in lawmakers in the Florida legislature.

In light of Justice Kavanaugh’s concurrency with Justice Kavanaugh’s concurrence in Moore v. SCOTUS, it could be that SCOTUS will wait for the perfect case to decide on the doctrine of an independent legislature. The recent decisions in the shadow docket based upon the “Purcell rule”– a principle founded on the decision in Purcell v. Gonzalez that courts should not modify state rules for elections just prior to the election. The justice argued that “it is now too far too late for federal courts to require districts to be altered in 2022’s primary and general elections the same way it was to late for federal courts to order this during the Alabama redistricting trial earlier this month.”

It is the Alabama case Kavanaugh is referring to is Merrill v. Milligan, where he added that the time was not right to make a ruling regarding the issue of merits. “[E]ven the most heroic efforts may not suffice to prevent chaos and confusion” Kavanaugh wrote in his concurring opinion with Justice Alito. In the case of Moore and the other challengers, they argued that the state legislature’s independent law was not in any way implicated as the legislature had specifically granted state courts the authority to act as they did.

If a matter occurs far enough in advance of an election that it can be argued all the way to the purcell rule,things could get interesting.

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