The Supreme Court on Monday declined to block the state-court-ordered redistricting plans in North Carolina and Pennsylvania, with three Justices (Alito, Thomas, Gorsuch) dissenting. SCOTUSblog has an excellent summary, including these observations:
In a brief order on Monday afternoon, the court declined, without explanation, to intervene in the North Carolina case. Alito dissented from that ruling in a four-page opinion that was joined by Thomas and Gorsuch. 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.”
Justice Brett Kavanaugh agreed with Alito both that the question is an important one and that it is likely to recur “until the Court definitively resolves it.” But in a separate opinion, Kavanaugh agreed with the court’s decision not to intervene now [based on the timing].
Rick Hasen has this post at Election Law Blog: Today’s Supreme Court Order Upholding the North Carolina Supreme Court’s Ungerrymandering of the State’s Congressional Districts, Could Well Be Temporary and Points to Big, Bad Election Law Precedent Potentially Coming Down the Line (commenting that "the Court is almost certain to take this case, when it comes up in the regular course (and not on the emergency shadow docket) for decision some time next year. It only takes 4 Justices to agree to hear such a case, and 4 said they want to hear it.").
Professor Hasen also relies heavily on this post by Mark Joseph Stern at Slate, who argues:
It [the independent state legislature rule] 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.
He (Hasen) adds:
If J. Kavanaugh ultimately goes along with the Alito reasoning, it will take only one more Justice to agree in order to overturn over two centuries of practice involving interpretation of state election law by state courts. Chief Justice Roberts' dissent in the Arizona redistricting case from 2015 put him very much in sympathy with Alito's position on the merits; he might demur for prudential reasons, but who knows? And Justice Amy Coney Barrett is a complete mystery, as she has not weighed in on this. I expect the major action is going to be building a strong record, based upon originalist style scholarship, that the independent state legislature theory, as currently understood, is contrary to the original understanding of the Constitution. There's a strong case to be made, and it will be one of the first tests to see how serious Justice Barrett takes such historical arguments.
Note that center-left commentators have (once again) found a constitutional issue where they think (a) the original meaning of the text is dispositive of a current closely contested issue and (b) the original meaning should be binding on the current Court. (See also articles linked here.)
Josh Blackman at Volokh Conspiracy comments here: Goodbye Roberts Brief. Hello Barrett Brief. (noting that Justice Barrett may well be the critical vote, quoting the above paragraph from Professor Hasen and adding:
You get that? ACB can only agree with Justice Alito, and rule in favor of the [independent state legislature rule], if she ignores the Constitution's original meaning. Under the Constitution's original meaning, the maps drawn by the NC Supreme Court should stand. And advocates can put Barrett's face on the cover.
Hasen and Stern may be right about the original meaning, though the titles of their posts show that they are very heavily invested in the outcome and so might not be the best to neutrally assess the original meaning. I don't doubt that the original meaning allows some state law procedural limits on how state legislatures manage federal elections, but that's very different from saying how the original meaning affects redistricting and especially the North Carolina/Pennsylvania cases.
We need a careful methodologically precise originalist paper on these cases that doesn't assume a particular outcome, speak in broad generalities or engage with an unrealistically extreme version of the independent state legislature rule. It's pretty much guaranteed to be cited by the Court.
Posted at 6:01 AM