Supreme Court Ruling That Could Redraw U.S. Election Maps—What to Know

The Supreme Court is currently considering a case that could have far-reaching implications for the U.S. electoral map, seeking to allow individual state legislatures full autonomy on drawing congressional district boundaries.

The Moore v Harper case, brought by Republican legislators in North Carolina, questions whether or not the Constitution stipulates that legislatures should be the only instrument of government to draw election maps, or whether it should be decided in part with other institutions.

While some believe that state legislatures should have the power to gerrymander—the manipulation of electoral boundaries to influence that constituency's proportion of votes in favor of one party—others believe it should be avoided as it can be used to underrepresent certain voting blocks and make some races effectively foregone conclusions.

Even though the case was brought by GOP members seeking to overturn a court decision about North Carolina's 2022 midterm elections, if the Supreme Court were to rule in favor, Democratic state legislatures could also gerrymander, potentially threatening a slim Republican majority in the U.S. House of Representatives.

When Will the Supreme Court Rule on Election Borders?

The Supreme Court issues opinions only on certain days designated in its calendar. At present, there is only one remaining day for opinions to be announced—this coming Thursday—before the summer.

As such, a decision on the election borders case could arrive by the end of the week, unless the court decides it no longer has the authority to rule on it.

All opinions are typically handed down by the last day of the court's term in late June or early July—which this year falls on June 22—and there are no rules about when decisions must be released with the exception of that deadline.

Newsweek approached the Supreme Court via email for comment on Monday.

What Is the Case Really About?

The lawsuit challenges a ruling by the North Carolina Supreme Court in which it rejected the state legislature's map because it gave preference to Republican candidates. The court instead imposed its own map, which saw an equal number of Democrats and Republicans elected.

The GOP case argues in favor of the "independent state legislature theory," which advocates a constitutional basis for state lawmakers to gerrymander electoral maps.

The theory points to the election clause of Article 1 of the Constitution, which says 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."

While advocates of the theory argue the word "legislature" refers directly to state legislatures, the status quo understanding of Article 1 is that this refers to a state's public institutions generally—including the governor and supreme court, who can block new election maps if they find the maps do not comply with the state's constitution.

Legal experts at the Brennan Center for Justice—a nonprofit institute at the New York University School of Law—described it as a "dubious interpretation" of the Constitution, and noted that if the Supreme Court were to effectively adopt the view in its ruling, "it would radically change our elections."

Douglas Spencer, an associate professor of law at the University of Colorado, who manages the All About Redistricting website, previously told Newsweek that the theory's merit is that it gives the state legislature "primacy," but suspected even the majority conservative Supreme Court bench was unlikely to rule in favor of it.

Yet, he suggested that the justices may limit the checks placed on a state legislature, "while still accepting some checks would be acceptable."

Why the Delay?

The Supreme Court does take time to consider the cases it accepts, but there is an added complexity to the Moore v Harper case.

The North Carolina Supreme Court overturned its own decision in late April after its control changed, which eliminated the dispute the Supreme Court legal challenge rests on. In May, the Supreme Court asked lawyers involved in the case to offer arguments as to whether it should still hear the case.

While lawyers for the Republican state legislators who brought the case continued to argue that the North Carolina Supreme Court's overruling had no impact on the case, others, including President Joe Biden's administration, dissented.

Even though the Moore v Harper case may not be decided by the Supreme Court, the issues concerning the drawing of election maps that it raises may soon return to its chambers.

As Spencer noted, another case coming out of Ohio poses the same question, without the state Supreme Court having since reversed its position.

What Might the Justices Say About It?

According to the Center for American Progress think tank, while hearing oral arguments in December, the Supreme Court justices appeared to be split on the independent state legislature theory based on their lines of questioning.

The center said Justices Clarence Thomas, Samuel Alito and Neil Gorsuch "seemed the most open" to an "aggressive" form of the theory, with Alito noting that Congress can act as a check against rogue redistricting decisions.

However, it said it seemed "less clear" whether other conservative judge,s Chief Justice John Roberts, Brett Kavanaugh and Amy Coney Barrett, felt the same, while the court's more liberal justices appeared supportive of the status quo.

What Has the Biden Administration Said?

In her most recent filing in the case, Elizabeth B. Prelogar, the U.S. Department of Justice Solicitor General, said that since the North Carolina Supreme Court had overturned its own ruling, the "question on which this Court granted review no longer has any live significance in this case."

In a prior brief in October, she said the Biden administration was against the legal challenge. Prelogar added it believed the regulation of elections by a state legislature was "subject to judicial review by state courts for compliance with the state constitution," as the framers of the Constitution had given no indication in the text to "unmoor that lawmaking process from state constitutional checks and balances."

Prelogar also pointed to "longstanding practices" of many state supreme courts and other parts of government having a say over how elections are managed, reinforcing the "natural reading" of Article 1.