Travis Long/The News & Observer via AP
Phil Strach, an attorney for Republican legislators, questions state Rep. Destin Hall, a top Republican redistricting official, during a partisan gerrymandering trial, January 5, 2022, at Campbell University School of Law in Raleigh, North Carolina.
Democracy dodged a bullet this week. But the victory may only be temporary.
On Monday, the Supreme Court decided not to consider, for the moment, an emergency appeal of the North Carolina Supreme Court’s decision to overrule the Republican state legislature’s partisan gerrymandering. (It also decided not to hear an appeal of the Pennsylvania State Supreme Court’s decision on a similar issue.) But at least four justices expressed an openness to revisit that decision after the midterms.
If, or more likely when, SCOTUS takes up the North Carolina case or a similar one, it could well set a precedent preventing anyone, including courts or voter initiatives, from challenging virtually any voter suppression and partisan gerrymandering laws passed by state legislatures. Among other consequences, this would render most of what’s left of the Voting Rights Act of 1965 unconstitutional.
Republican state legislatures could then gerrymander themselves into virtually permanent power, then gerrymander House districts into virtually permanent power, and enact, without challenge, virtually any voter suppression laws they want. It could literally spell the end of our already fragile democracy, and further enable more or less permanent Republican rule, whether they represent a state’s minority or majority.
The North Carolina Case
In the North Carolina case, the Republican state legislature had enacted a radically gerrymandered electoral map that virtually guaranteed that Republicans would win 10 of the state’s 14 U.S. House seats, even though the state is split more or less equally between Democrats and Republicans.
The North Carolina Superior Court held that this violated the state constitution. It adopted a new election map created by a nonpartisan expert redistricting panel that would likely give Democrats and Republicans six relatively safe seats each and leave two seats competitive. The elected state supreme court refused to overrule the superior court. The North Carolina courts found beyond a reasonable doubt that the legislature’s gerrymandered maps violated the free elections clause, the equal protection clause, the free speech clause, and the freedom of assembly clause of the North Carolina constitution.
The Independent State Legislature Doctrine
Republicans appealed to the U.S. Supreme Court for emergency relief before the 2022 election.
Their appeal was largely based on the formerly fringe “independent state legislature doctrine,” which posits that the Elections Clause in Article I of the U.S. Constitution grants state legislatures the sole authority to determine all election rules, superseding any other rights guaranteed in a state constitution, interpreted by state or federal courts, or passed by voter initiative.
It takes at least four votes in the Supreme Court to grant certiorari (i.e., to take up a case). In Monday’s decision not to consider the Republican emergency appeal right now, there were only three votes to take it up as part of the Court’s so-called “shadow docket” (i.e., without full briefing and oral arguments). Justice Alito, joined by Justices Gorsuch and Thomas, filed a blistering dissent stating that they would grant a stay of the North Carolina Supreme Court’s decision right now, before the 2022 election. They further argued that the North Carolina Republicans would likely win on the merits soon. “If the language of the Elections Clause is 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,” Alito wrote.
But it appears that there are at least four votes to uphold the independent state legislature doctrine in the very near future. Justice Kavanaugh voted to deny cert, not because he disagreed with Alito, Gorsuch, and Thomas’s invocation of the independent state legislature doctrine (which Kavanaugh had previously endorsed in a 2020 Pennsylvania election case) but because he thought the emergency appeal came too close to the 2022 primary and general election to decide now. “I believe the Court should grant certiorari in an appropriate case … and decide the issue next Term after full briefing and oral argument.”
If Kavanaugh keeps with his past practice, and Amy Coney Barrett votes with her ultra-right-wing colleagues, there would be a 5-4 majority.
Alito, Thomas, Gorsuch, and Kavanaugh’s support of the independent state legislature doctrine is the height of hypocrisy. As recently as 2019, in the case of Rucho v. Common Cause, SCOTUS ruled that federal courts have no ability to question state partisan gerrymandering. But in Justice Roberts’s 5-4 majority opinion joined by Alito, Thomas, Gorsuch, and Kavanaugh, the four most right-wing justices effectively agreed with Roberts that state courts could still consider partisan gerrymandering cases. “Our conclusion does not condone excessive partisan gerrymandering. Nor does our conclusion condemn complaints about districting to echo into a void. The states, for example, are actively addressing the issue on a number of fronts.”
In an earlier case, U.S. Term Limits, Inc. v Thornton, SCOTUS held that “[T]he Framers understood the Elections Clause as a grant or authority [to state legislatures] to issue procedural regulations, not as a source of power to dictate electoral outcomes, to favor or disfavor a class of candidates, or to evade important constitutional restraints.”
These opinions would be wiped away if the Court ruled that only state legislatures had the power to make election laws. The legislatures, which in most states draw their own districts and choose their own voters, would have near-unilateral authority to suppress votes and dictate the outcomes of elections.
Will Amy Coney Barrett Vote to Uphold the Independent State Legislature Doctrine?
With four justices likely to endorse the independent state legislature doctrine next term, the fate of democracy based on majority rule may come down to the vote of one woman, Amy Coney Barrett. It looks like Alito, Thomas, Gorsuch, and Kavanaugh are little more than politicians in judicial robes, prepared to reject the Founders’ intent and Supreme Court precedents, including their own precedents, when it suits the outcome they politically prefer.
Is Barrett also a politician in judicial robes? There’s plenty of reason to suspect she is. As Trump’s third SCOTUS nominee after Gorsuch and Kavanaugh, she was rushed through the Senate by Mitch McConnell before the 2020 elections.
But Barrett also has a written record rejecting “literalism” in originalist interpretation. She has written that “there is a lot more to understanding language than mechanically consulting dictionaries.” Originalists must “care about what people understood words to mean at the time the law was enacted because those people had the authority to make laws.” There’s plenty of legal scholarship rejecting the idea that the Founders intended the word “legislature” to be taken literally as meaning only the state House and Senate.
Is there any chance Barrett will reject the literalism of the independent state legislature doctrine and uphold the right of state courts and voters to overrule gerrymandering and voter suppression laws passed by state legislatures? Or will she join with Trump’s other two appointees, plus Thomas and Alito, in effectively endorsing government of, by, and for the minority?
If Barrett does the latter, you can pretty much kiss the remnants of American democracy goodbye.
