Thread by @mjs_DC

BREAKING: SCOTUS has refused to stay congressional maps drawn by the state Supreme Courts of North Carolina and Pennsylvania.

Alito, Thomas, and Gorsuch dissent from the North Carolina decision. Orders posted shortly.

Here is the NC order.

Alito, Thomas, and Gorsuch, say the NC Supreme Court's maps likely violate the Elections Clause, endorsing the independent state legislature theory.

Kavanaugh says the Purcell principle requires SCOTUS to stay out of it—for now. s3.documentcloud.org/documents/2139…

Here is the Pennsylvania order denying an injunction. No noted dissents. The court notes that the case has been referred to a three-judge court and the parties can appeal from its decision to grant or deny an injunction. s3.documentcloud.org/documents/2139…

The good news here is that the Supreme Court will not interfere with PA or NC's court-drawn congressional maps for 2022.

The bad news is that there are four votes—Kavanaugh, Alito, Thomas, Gorsuch—to take the NC case later and endorse the independent state legislature doctrine.

The interesting news is that Barrett apparently sided with Roberts and the liberals in denying an injunction AND declined to write separately endorsing the independent state legislature doctrine, suggesting that she may not want to overturn 100+ years of pro-democracy precedent.

Simply extraordinary that Alito would write this passage after joining an opinion less than three years ago (Rucho) assuring the nation that state Supreme Courts could limit partisan gerrymandering under state constitutions. s3.documentcloud.org/documents/2139…

This post provides a good overview of the extensive research demonstrating that the "independent state legislature doctrine" is not just dangerous but fundamentally wrong and anti-originalist. electionlawblog.org/?p=127941

The Supreme Court granted a reprieve tonight, but four justices have made it clear that they will force this issue next term.

By November 2024, state legislatures may have near-unlimited power over federal elections. slate.com/news-and-polit… @Slate

It is certainly true that members of Congress have cited the independent state legislature doctrine in a self-interested effort to ensure that members of their own party are seated in a contested election, and that a handful of jurists have endorsed it over the last 200+ years.

But a comprehensive review of history demonstrates that the Framers did not intend to nullify state constitutional limits on election law or empower state legislatures alone to conduct federal elections. A sampling of scholarship:
papers.ssrn.com/sol3/papers.cf…
papers.ssrn.com/sol3/papers.cf…