The Ominous Elections News From Democrats’ Supreme Court Win

Another “shadow docket” ruling for the U.S. Supreme Court. Photo: Ting Shen/Xinhua News Agency via Getty Images

When North Carolina and Pennsylvania Republicans petitioned the U.S. Supreme Court to overturn state-court decisions against their attempted congressional gerrymanders, there were two issues at hand. The most immediate matter involved the gerrymanders themselves: Was there any federal constitutional bar to state courts interpreting state laws to smack down state legislative regulation of federal elections? There was also a longer-term issue casting a big shadow on the 2024 presidential elections: Do state legislatures have constitutional superpowers that may let them override state and even federal laws governing the designation of presidential electors, as Donald Trump’s campaign claimed in 2020 as part of its efforts to overturn that year’s results?

As Mark Joseph Stern noted at Slate when “shadow docket” orders (rulings on emergency petitions, delivered without oral arguments or extensive deliberations) came down on both petitions, the Pennsylvania GOP effort to reverse a state-court redistricting decision was a stretch: “The plaintiffs demanded at-large congressional districts for the first time since the 18th century because there was no backup map in place and no time for the legislature to draw one.” So the Supreme Court rejected the Pennsylvania petition without dissent or comment.

But in the North Carolina case, the Supreme Court said “no” to the GOP gambit to overturn new court-imposed maps and “maybe” to the broader claim of legislative superpowers. Six justices — John Roberts, Stephen Breyer, Sonia Sotomayor, Elena Kagan, Brett Kavanaugh, and Amy Coney Barrett — rejected the North Carolina legislature’s petitions to overturn its state court’s redistricting ruling that could shift as many as four U.S. House seats toward Democrats as compared to the original legislative map. Three justices (Clarence Thomas, Samuel Alito, and Neil Gorsuch) dissented, with an opinion from Alito citing the famous “independent state legislature” doctrine, under which neither federal nor state courts can overrule legislative determinations of rulings affecting federal elections.

It’s not clear, however, that the Court’s majority rejected that doctrine. Kavanaugh’s concurring opinion explicitly reserved judgment on it, instead basing his rejection of the North Carolina petition on the close proximity of the 2022 elections. Chief Justice Roberts (who has expressed support for strong legislative election prerogatives in the past) and Barrett were silent.

So a short-term victory for the prerogatives of state courts interpreting state election laws (which in these two cases benefited Democrats) could later give way to a bigger defeat that puts legislatures in the driver’s seat in future election controversies — you know, like controversies over who actually won a presidential election. Trump’s frustrated 2020 effort to get Republican legislatures to overrule state-certified electoral-vote rewards might fare better in 2024 with more time to prepare the groundwork for a coup. And even if that doesn’t happen, legislatures — not courts, governors, or secretaries of State — could have the final word on election and voting procedures. As election-law expert Rick Hasen warned after the North Carolina order, we could see a “big, bad election law precedent potentially coming down the line.”