Wednesday Writs: Congressional Maps Mania Edition

Slowking4, GFDL 1.2 <http://www.gnu.org/licenses/old-licenses/fdl-1.2.html>, via Wikimedia Commons

WW 1: The Supreme Court has declined to intervene to block state court decisions in North Carolina and Pennsylvania on congressional maps.

The North Carolina case, decided by a 6-3 court, was based on the state legislature’s redrawing of maps based on the 2020 census. North Carolina Democrats filed suit, claiming the maps were illegal gerrymandering, giving Republicans unfair advantage. The state Supreme Court ruled in the Democrat’s favor in February, sending the maps back to the lower court which rejected a new Republican proposal in favor of congressional maps drawn by a court appointed expert. When the North Carolina Supreme Court refused to stay use of the congressional maps, state Republican legislators asked SCOTUS to intervene.

No need to reinvent an already perfected wheel, so I will quote Amy Howe’s succinct summary from SCOTUSBlog:

In their appeal to the justices, the legislators relied on the independent-state-legislature theory, which rests on the idea that two clauses in the Constitution give state legislatures the power to regulate federal elections in their states…

The Republican legislators in the North Carolina case urged the Supreme Court to step in to block what they characterized as a “usurpation” of the legislature’s power under the Constitution to regulate congressional elections. If the elections are allowed to go forward under the new, court-created map, the legislators argued, both the legislators and the voters will suffer permanent and irreparable harm. Not only will the courts have seized the legislators’ power, but the voters will have been forced to choose their representatives in Congress through unconstitutional procedures.

The Democrats argued that the North Carolina state legislature gave their state courts the authority to do what it did in rejecting the map, meaning that there was no usurpation.

In declining to grant the stay, the majority issued no written explanation. But Justice Kavanaugh did offer his concurrence to explain why he did not side with Republicans. Kavanaugh did not necessarily agree with the Democrats position but felt it was too close to election season to make changes, citing the “Purcell principle.” Purcell was a 2006 case in which the Court opined that election rules should not be changed close in time to an election because of the uncertainty and chaos last minute changes can cause. But Kavanaugh tossed a bone to conservative court observers by making clear that he thinks the issue should be examined in full on its merits – just not in a case coming right before primary season.

Kavanaugh’s latter argument formed the essential basis of the dissent penned by Justice Alito and joined by Thomas and Gorsuch. He states that it is high time for the Court to give this issue a full review and stop punting, but it is clear he has an opinion beyond just thinking the Court needs to resolve the controversy. He points out that the constitution specifically says that “Times, Places and Manner of holding Elections for Senators and Representatives” must be “prescribed in each State by the Legislature thereof” (emphasis added by Justice Alito.) The drafters could have left out the “by the legislature” clause if they intended to give the power to the states in general, he argues. He then criticizes the North Carolina state supreme court anti-partisan-gerrymandering precedents that are relied upon by the Democrats as an attempt by the court to legislate.

Alito acknowledges the Democrat’s argument that it is the appropriate role of state supreme courts to interpret election laws and analyze the constitutionality thereof, but states that he thinks the applicants (the Republican NC legislators) have the stronger argument.

The question presented is one of federal not state law because the state legislature, in promulgating rules for congressional elections, acts pursuant to a constitutional mandate under the Elections Clause. Cf. Bush, 531 U. S., at 113 (Rehnquist, C. J., concurring) (compliance with the Electors Clause “presents a federal constitutional question”). And 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. I think it is likely that the applicants would succeed in showing that the North Carolina Supreme Court exceeded those limits.

He then avers that the applicants would be “irreparably harmed if a stay is not granted 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 we eventually determine were unconstitutionally imposed.”

Alito addresses the Purcell principle argument but dismisses the idea that a change at the time the application for stay was filed – three days before the candidate’s filing deadline – would not have had a significant impact on election procedures, requiring only a small change on the required form to ensure they filed in the correct district.

The facts underlying the Pennsylvania case are similar in that the state court discarded congressional maps created by the legislature. More specifically, the governor, a Democrat, vetoed the maps. A group of voters filed suit and asked the court to adopt “the Carter plan,” another congressional map. The state supreme court intervened and instructed the lower court judge to submit recommendations for redistricting. The judge chose the legislature’s original map, but the Pennsylvania supreme court chose to go with the Carter plan.

A different group of voters filed suit in federal court. Among them was Aaron Bashir, who intends to run for Congress in Pennsylvania. The suit asked the district court to block the use of any plan chosen by the state courts and to reinstate the legislature’s map. When the federal district court failed to take any action, the plaintiffs asked SCOTUS to step in and find that the state courts had violated the constitution.

However, the Pennsylvania plaintiffs stress that they do not argue that the state court can never step in if the legislature produces unconstitutionally drawn districts, but that they should do so sparingly and only to the extent necessary to bring the plan into constitutional compliance. Their beef is that the state court instated a completely new map rather than order “at-large” elections, which, they argue, is required by Pennsylvania law when redistricting cannot be completed in time for the election.

With no explanation, no concurrence, and no dissent, SCOTUS denied the injunction but sent the case back to the district court to be heard by a 3 judge panel, whose order can then be appealed if the losing party wishes. It seems clear this one was rejected for not having jumped through the procedural hoops before arriving at the high court. But it may come back, and we know how 3 — possibly four — of the justices are likely to come down.

WW 2: Following sanctions on Russian state bank VEB, a global law firm has dropped the bank as a client in a dispute that was just about to reach SCOTUS. The firm, Freshfields Bruckhaus Deringer, was representing the bank in its fight to avoid a subpoena from a US Jewish organization, who is seeking Russian assets to satisfy a $150 million judgment. Russia is remains in possession of thousands of Jewish manuscripts and letters belonging to the organization, which the country was ordered to turn over in 2010.

WW 3: A Rhode Island law student took to TikTok when a bailiff blocked her entrance to a courtroom, where she was headed to represent a client (3rd year students may do so under supervision in many states), assuming she was a defendant on the court’s docket. The young woman of color believes her race is the reason for the bailiff’s assumption. I’m not saying she’s wrong, but I will say this has happened to me at least twice in my career.

WW 4: On International Women’s Day, the Taliban vows to protect women’s “legitimate rights”. I feel like the word “legitimate” is doing a lot of work here…

WW 5: Depending on the outcome of a lawsuit in Arizona, automatic emergency brake systems may join back-up cameras in becoming mandatory in new vehicles.

WW 6: If Prince’s estate has its way, Morris Day will no longer have The Time.

WW 7: Prosecutors in the Bill Cosby case lost their bid to reinstate the sexual assault conviction against Cosby; the Supreme Court refused to hear their appeal of last year’s decision by the Pennsylvania Supreme Court.