The U.S. Supreme Court has allowed court-drawn congressional redistricting maps favored by Democrats to remain in effect in North Carolina and Pennsylvania while litigation continues in the lower courts. As Justice Alito wrote in a brief dissent in the North Carolina case the U.S. Supreme Court has “not yet found an opportune occasion” to address the “extent of a state court’s authority to reject rules adopted by a state legislature for use in conducting federal elections.”
In Moore v. Harper the North Carolina legislature drew new congressional maps based on data from the 2022 census which likely would have allowed Republicans to increase seats in the state’s congressional delegation by two—giving them 10 of the 14 seats. The North Carolina Supreme Court concluded the maps were an unconstitutional partisan gerrymander under the state constitution. A North Carolina trial court rejected North Carolina legislature’s remedial plan and adopted a plan drawn up by special masters.
The challengers argued the U.S. Supreme Court should allow the North Carolina legislature’s original redistricting maps to go in effect. They cited to the U.S. Constitution’s Elections Clause which states that the “Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations.” They argue this “provision vests the power to regulate federal Senate and Congressional elections in each State’s legislature, subject only to congressional supervision. The state Supreme Court’s usurpation of that authority simply cannot be squared with the lines drawn by the Elections Clause.”
The U.S. Supreme Court rejected the challengers request without a written opinion. Justice Kavanaugh wrote a concurring opinion citing to Purcell v. Gonzalez (2006) as a reason for not granting the challengers the emergency relief they requested. In Purcell the U.S. Supreme Court held that federal courts shouldn’t alter state election laws near the time of an election. Justice Alito, joined by Justices Thomas and Gorsuch, in dissent stated he thinks the challengers would win this case if the Court decides it on its merits.
In Toth v. Chapman, the Republican-led Pennsylvania legislature approved a redistricting plan which would result in 9-8 Democratic-leaning congressional districts. The Democrat governor vetoed the plan. The Pennsylvania Supreme Court ordered a judge to recommend a redistricting plan. She recommended the plan which the legislature had put forward. The Pennsylvania Supreme Court rejected her recommendation and adopted a plan proposed by litigants in this case creating 10-7 majority Democratic-leaning districts.
The challengers wanted the U.S. Supreme Court to not allow the map the Pennsylvania Supreme Court chose to go into effect. Like the North Carolina challengers they argued the Elections Clause prohibits the Pennsylvania Supreme Court from implementing its own plan. They also argued: “The state supreme court’s behavior is even more egregious because there is a congressional enactment that specifies what must happen in the event of a stalemate between the General Assembly and the governor. Under 2 U.S.C. § 2a(c)(5), the state’s congressional delegation must be elected at-large if the State has not been ‘redistricted in the manner provided by the law thereof.’”
None of the Justices wrote an opinion in Toth v. Chapman. While the Supreme Court has decided not to get involved in these cases now it may do so in the future. Four Justices have indicated they are interested in deciding how much authority state courts have in drawing congressional redistricting maps.