Supreme Court rejects novel legislative theory, but leaves door open for 2024 election challenges

Supreme Court Elections

“They've rejected a lot of the extreme stuff, but there is still a lot of room for ideological and partisan judging to come into play,” said Rick Hasen, a law professor at the University of California Los Angeles who filed an amicus brief in the case urging the court to reject the theory across the board.

The high court this week will decide whether to hear another case that touches on similar issues, an appeal by Ohio Republican lawmakers of a pair of state supreme court rulings directing them to draw fair congressional maps. The issue could come up in other cases where a state supreme court overturns congressional maps, such as in Wisconsin, where Democrats hope a new liberal majority on that state supreme court will reverse what they claim is a Republican gerrymander there.

As Republicans have gained more power in state legislatures, the theory has become more popular on the right. North Carolina's GOP-controlled legislature last year argued that the theory meant its state supreme court couldn't overturn the map it drew that awarded a disproportionate share of the state's 14 congressional districts to Republicans. But Chief Justice John Roberts, writing for the majority in the case, known as Moore v. Harper, dismissed that argument as historically and legally inaccurate.

“We will see cases, but I think almost certainly – unless something really screwy happens – they’re going to lose a lot,” said Cameron Kistler, a legal counsel at the nonprofit group Protect Democracy. “I think the Supreme Court is going to want to draw a pretty firm line here, because the last thing they want is for every election law determination by every state official and every state court to present a federal issue.

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