The North Carolina congressional map drawn by state judges would likely give Democrats at least another seat in Congress next year. The court — over the noted dissents of Justices Samuel Alito, Clarence Thomas and Neil Gorsuch — turned away an emergency request from Republican legislators to use a different map that would be more favorable to their party.

For Pennsylvania, the court rejected an emergency request from a group of six Republican voters who wanted to freeze a ruling from the commonwealth’s high court that allowed the maps to take effect and altered the general primary calendar. There were no noted dissents from the two-sentence order.

The North Carolina case especially had been closely followed by election law experts because lawyers for Republican legislators had asked the Supreme Court to adopt a theory that state courts cannot interpret their own state constitutions when it comes to redistricting and rules related to federal elections.

The theory is called the “Independent State Legislature claim” in legalese. The Electors Clause of the US Constitution vests “state legislatures” with the power to appoint presidential electors “in the manner” they choose. The Elections Clause gives them control over the “Times, Places and Manner” of holding elections. Under the theory being pushed, “legislature” excludes a role for state courts.

Judge shuts down January 6-based challenge to Rep. Madison Cawthorn's candidacyJudge shuts down January 6-based challenge to Rep. Madison Cawthorn's candidacy

If a majority of the court were ever to adopt those arguments, it could profoundly change the landscape of election law, upending the power of state courts to rely on state laws in disputes over federal elections. The theory attracted some members of the court’s right wing in the past during litigation surrounding then-President Donald Trump’s quest to use the courts to overturn Joe Biden’s presidential election victory.

The North Carolina Supreme Court held that the congressional map was an unconstitutional partisan gerrymander under North Carolina law, saying that the General Assembly must not “dilute any individual’s vote on the basis of partisan affiliation.” The congressional maps are “unconstitutional beyond a reasonable doubt” under several clauses of the North Carolina Constitution, it added. The state Supreme Court ordered a trial court to prepare new maps.

North Carolina is divided into 14 congressional districts, having gained an additional seat after the 2020 census due to an increase in the state population.

In court papers, lawyers for the legislators said the state Supreme Court’s actions “nullify the North Carolina General Assembly’s regulations of the manner of holding federal elections in the State and replaces them with new regulations of the judiciary’s design.” They said the North Carolina Supreme Court’s actions “are fundamentally irreconcilable” with the federal Constitution.

A coalition of voting rights groups, Democratic voters and the state’s board of elections urged the US Supreme Court to stay out of the dispute. They said that if the justices were to intervene now it would cause confusion and delay as well as “severe administrative difficulties.”

After the order, Neal Katyal, a lawyer for the coalition of groups, praised the court’s decision. “By denying this stay, the U.S. Supreme Court has recognized in line with many precedents that there is no constitutional basis for attempting to rewrite the North Carolina Supreme Court’s decision at the 11th hour,” said Katyal.

“By leaving intact the decision by the North Carolina Supreme Court, the U.S. Supreme Court has paved the way for elections to proceed with the legislative and Congressional maps as ordered by the state courts,” he added.

Conservative dissents

Alito, Thomas and Gorsuch would have ruled in favor of the Republican legislators from North Carolina. They said in their dissent that the case presented an “exceptionally important and recurring question of constitutional law” concerning “the extent of a state court’s authority to reject rules adopted by a state legislature for use in conducting federal elections.”

The dissenters said the case at hand had presented a good opportunity to consider the issue, “but unfortunately the Court has again found the occasion inopportune.”

They said the Republicans will be “irreparably harmed” because they will be deprived of their constitutional prerogative to draw the congressional map in their state, and the public interest will be disserved if the 2022 congressional elections in North Carolina are held using districts that the court eventually determines were “unconstitutionally imposed.”

Justice Brett Kavanaugh said he agreed with his conservative colleagues that the court should eventually take up the issue of the role of state courts.

But he did not dissent and said he agreed with the majority in the case at hand to allow the maps to be used for the next election. “This Court has repeatedly ruled that federal courts ordinarily should not alter state election laws in the period close to an election,” Kavanaugh wrote.

Pennsylvania district fight

Lawyers for the Republican voters in Pennsylvania had told the justices that “relief is urgently needed” because candidates are already campaigning for office under an “unconstitutional map” and the statutory deadline for obtaining the needed signatures on nomination petitions falls on Tuesday.

Pennsylvania had 18 seats in the US House of Representatives, but the results of the 2020 census left it with one seat fewer due to population shifts. In January, the Republican-led General Assembly approved what the GOP voters argued was a “reasonable non-gerrymandered map” that would have created a 9-8 majority of Democratic-leaning congressional districts.

A roadmap to the 2022 midterm electionsA roadmap to the 2022 midterm elections

But Democratic Gov. Tom Wolf vetoed the map, saying the General Assembly’s action “adopts a map selected by politicians to take advantage of the process and choose their own voters.”

Separately, a group of litigants went to the Supreme Court of Pennsylvania to impose a map that would have favored Democrats and likely created a 10-7 majority of Democratic-leaning districts. The state Supreme Court ultimately adopted the plan — dubbed the “Carter Plan.”

Lawyers for the commonwealth asked the court to reject Republicans’ petition, arguing it amounted to an “invitation to chaos” by creating an at-large election.

“Petitioners ask the Court to scrap the entire congressional map for Pennsylvania and to order the Commonwealth to hold statewide at-large congressional elections for the first time since the 18th Century,” Joshua Matz, a lawyer for Pennsylvania, said in court papers.

This story has been updated with further details and background.

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