A pair of cases are currently pending before the Supreme Court that could fundamentally rewrite the rules of US elections.
Both cases are redistricting cases. In Moore v. Harper, the North Carolina Supreme Court struck down gerrymandered congressional maps drawn by the state’s Republican legislature. In Toth v. Chapman, the Pennsylvania Supreme Court selected a congressional map for the state after its Republican legislature and Democratic governor deadlocked on what that map should look like.
In both cases, Republicans claim that state courts are not allowed to intervene in redistricting cases because something called the “independent state legislature doctrine” forbids them from doing so.
In the worst-case scenario for democracy, should the Court embrace this doctrine, state constitutions would cease to provide any constraint on state lawmakers who wish to skew federal elections in their party’s favor. State courts would also lose their power to strike down anti-democratic state laws. And state governors, who ordinarily have the power to veto new state election laws, would lose this veto power.
As Justice Neil Gorsuch described this approach in a 2020 concurring opinion, “the Constitution provides that state legislatures — not federal judges, not state judges, not state governors, not other state officials — bear primary responsibility for setting election rules.”
This worst-case scenario isn’t a foregone conclusion, but it’s decidedly within the realm of possibility. The Court might also implement the doctrine selectively, holding, for example, that state supreme courts typically cannot toss out gerrymandered maps, but that state governors can veto these maps.
Four members of the Court have already endorsed this doctrine, despite the fact that the Supreme Court has repeatedly rejected it over the course of more than a century. Along with Gorsuch, Justices Clarence Thomas, Samuel Alito, and Brett Kavanaugh all embraced it in lawsuits seeking to alter which rules would govern the 2020 election.
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