Supreme Court Ruling Could Impact 28 Voting Cases

A major Supreme Court decision today rebuking gerrymandering in North Carolina could have a slew of future repercussions on elections, voting laws and procedures across a plethora of states.

The court voted 6-3 to reject the "independent state legislature theory" (ISL) advanced by North Carolina Republicans in the Moore v. Harper case. It sided with the North Carolina Supreme Court and its authority to strike down a congressional map drawn in the GOP-led state legislature for alleged gerrymandering. The map passed a party-line vote in 2021, awarding 10 seats to Republicans and four to Democrats.

The U.S. Supreme Court initially heard oral arguments in December 2022 after North Carolina State House Speaker Tim Moore brought the case forward. He argued that the state court violated the U.S. Constitution's Elections Clause when it overturned the map, claiming as part of the ISL theory that state legislatures have more authority than state courts and state constitutions as it pertains to federal elections.

Chief Justice John Roberts was joined in the majority by Amy Coney Barrett, Ketanji Brown Jackson, Elena Kagan, Brett Kavanaugh and Sonia Sotomayor.

"Elections Clause does not vest exclusive and independent authority in state legislatures to set the rules regarding federal elections...[and] does not insulate state legislatures from the ordinary exercise of state judicial review," states the Court's opinion, authored by Roberts.

Democracy Docket, which provides information, analysis and opinion about voting rights, elections and democracy, cited 28 ongoing cases challenging congressional maps or voting laws under state law or state constitutions that "in light of today's decision...will continue in court unimpeded by the ISL theory," they wrote.

They include seven cases challenging congressional maps, and 21 cases challenging voting laws or procedures under state constitutions or state law.

The seven cases are being litigated in the following states: Florida, Kentucky, New Mexico, New York, Ohio and Utah.

The other 21 cases are being heard in Alaska, Arkansas, Colorado, Idaho, Iowa, Kansas, Missouri, Montana, New Hampshire, Tennessee, Texas, Washington and Wisconsin.

"Elections are high-stakes enterprises, and so people are going to make the argument that they think they have available to them," said Carolyn Shapiro, professor at the Chicago-Kent School of Law and founder of its Institute on the Supreme Court of the United States. "So, of course, there's going to be litigation; that is always going to be true.

"The question is what's going to happen and what kind of arguments are likely to prevail, and we don't know all of the answers to those questions at this point. But we do know that if a state's constitution says for example, as some do, that partisan gerrymandering is impermissible—that's going to be enforced."

Shapiro, who filed an amicus brief as part of this Supreme Court case, told Newsweek via phone that checks and balances were properly upheld.

"For 230-plus years, everybody has understood that when state legislatures pass laws that regulate elections, whether state or federal, they were constrained by the state constitution," Shapiro said. "The ISLT posited that we've all been wrong for 230 years and, in fact, legislatures are not constrained by their state constitutions and are not subject to the ordinary checks and balances that happen when courts review laws and consider laws.

"Today, the Supreme Court rejected that position. It's the way we've always assumed and the way we've always practiced, which is that the state legislature is a creature of its constitution and so is bound by the constraints of its constitution."

Former President Barack Obama weighed in on the decision, praising the Court for rejecting the "fringe theory that threatened to upend our democracy and dismantle our system of checks and balances."

Some believe the opinion also provides for an open-ended interpretation of election laws that could provide federal courts, or the Supreme Court itself, the final say in such disputes.

"While the Court does not adopt a test by which state court interpretations of state law can be measured in cases implicating the Elections Clause, state courts may not transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections," Roberts wrote at the conclusion of the opinion.

Shapiro said that while these more than two dozen cases across the country will continue to be litigated, she believes the Supreme Court "is not particularly open to adventurous arguments about state courts not doing their job."

That doesn't mean a circumstance doesn't exist in which the contrary could be found plausible, she acknowledged.

"The question is whether how broadly the court will construe the language that Chief Justice Roberts used, of the bounds of ordinary judicial review," she said. "We won't I know for a while...I think the signals that the Court is sending is that it is going to continue to be as deferential as it has always been towards state courts construing their own constitutions and statutes and applying them.

"Is there a possibility that they will be less deferential? Yes. But those aren't the signals I see in this opinion."