Independent State Legislature Theory; Moore v. Harper

[Torie]

The WSJ hosts an opinion piece supporting the concept. The high court in NC bans gerrymandering and draws the CD map based on generalized words in the NC Constitution (court overreach imo, which is getting more popular at the state level). The "fix" is to blow the building up, and legalize CD gerrymandering once and for all, and put state courts out of business, at least when it comes to congressional district drawing. State legislative district line drawing would presumably not be affected. Just when poli sci academic experts were getting into their stride with "taking over" line drawing, storm clouds appear threatening to truncate the scope of their jurisdiction. How sad.

One "compromise" I suppose, probably reflecting judicial activism, would require explicit delegating of the legislative power on this issue to another body, rather than pulling it out of the ether, but even then, if not in the State Constitution, that could all be repleaded by the state legislature if the governor is in friendly hands, or one party has a supra majority.  Can the voters by referendum force the legislature to delegate its power to another process by putting such a clause in the state constitution?

We shall find out in the next few months. SCOTUS's time in the klieg lights is not yet over.

https://www.wsj.com/articles/marc-elias-curious-idea-of-democracy-moore-v-harper-court-state-judges-election-law-gerrymandering-legislature-11659380162?mod=djemalertNEWS

[ProgressiveModerate]

The flaw with the Independent State Legislature theory is sometimes courts HAVE to get involved, such as if there’s partisan gridlock (PA, MN, WI). Furthermore, certain states do have laws about how the maps can and can’t be drawn, such as OH and NY and when those are disobeyed it’s the courts job to step in.

I agree that sometimes the courts stretch their rulings like in MD or NC, however, I think that’s ultimately a much smaller problem than gerrymandering as a whole, especially since at the end of the day it leads to fairer maps. That could expose a larger problem with the courts rather than just on this specific issue

[Nyvin]

If the "constitutional originalist" justices are going to be that extreme with their originalism with the word "legislature" than maybe we should expand that so called "originalism" to the entire concept of striking down laws as given to the Supreme Court through Marbury vs Madison.

No where in the constitution does it "specifically" say that the Supreme Court has that power and is not "constitutional originality" so any justice that makes the Independent State Legislature Theory argument is a fraud because they're being selective in their interpretations.

[RussFeingoldWasRobbed]

Whatever. Unless it's the over the top version, SCOTUS doing this would benefit democrats

[Torie]

The flaw with the Independent State Legislature theory is sometimes courts HAVE to get involved, such as if there’s partisan gridlock (PA, MN, WI). Furthermore, certain states do have laws about how the maps can and can’t be drawn, such as OH and NY and when those are disobeyed it’s the courts job to step in.

I agree that sometimes the courts stretch their rulings like in MD or NC, however, I think that’s ultimately a much smaller problem than gerrymandering as a whole, especially since at the end of the day it leads to fairer maps. That could expose a larger problem with the courts rather than just on this specific issue

Yes, giving legislatures sole control would be a policy disaster, but good policy and the Constitutional textual  meaning are not always in sync. In cases of gridlock of course, the federal courts step in to enforce the SCOTUS imposes equal population requirement. But there the metric is least change, so prior gerrymanders can have an extended half life potentially.

Btw the way, I came up with my own fairness metric chart. I should copyright it or something. 

 

[Tintrlvr]

If the "constitutional originalist" justices are going to be that extreme with their originalism with the word "legislature" than maybe we should expand that so called "originalism" to the entire concept of striking down laws as given to the Supreme Court through Marbury vs Madison.

No where in the constitution does it "specifically" say that the Supreme Court has that power and is not "constitutional originality" so any justice that makes the Independent State Legislature Theory argument is a fraud because they're being selective in their interpretations.

I do agree with this, that you can't in a logically consistent fashion believe in both the federal courts' power of judicial review and in the independent state legislature theory.

The WSJ hosts an opinion piece supporting the concept. The high court in NC bans gerrymandering and draws the CD map based on generalized words in the NC Constitution (court overreach imo, which is getting more popular at the state level). The "fix" is to blow the building up, and legalize CD gerrymandering once and for all, and put state courts out of business, at least when it comes to congressional district drawing. State legislative district line drawing would presumably not be affected. Just when poli sci academic experts were getting into their stride with "taking over" line drawing, storm clouds appear threatening to truncate the scope of their jurisdiction. How sad.

More popular in gerrymandering cases, perhaps, but not at all overall - this is just common law jurisprudence acting like common law jurisprudence does, taking general principles and turning them into actionable mandates at the judiciary. State courts have been doing this for ages. Federal courts only didn't do it as much historically (before the 1950s, anyway) because the federal constitution is mostly proscriptive rather than prescriptive, but state constitutions, given the plenary power of states generally, are clearly prescriptive since where else would power reside?

[Torie]

If the "constitutional originalist" justices are going to be that extreme with their originalism with the word "legislature" than maybe we should expand that so called "originalism" to the entire concept of striking down laws as given to the Supreme Court through Marbury vs Madison.

No where in the constitution does it "specifically" say that the Supreme Court has that power and is not "constitutional originality" so any justice that makes the Independent State Legislature Theory argument is a fraud because they're being selective in their interpretations.

I think we had this discussion before. Get your friends elected to the Senate en mass, and have them ask SCOTUS nominees if they support reversing Marbury v. Madison. If they say no, or refuse to answer, then they don't get confirmed.  Or go the court packing route of course, to get Marbury v, Madison haters on the court en mass. That will make SCOTUS almost like a sinecure since the work load will be so light. Meanwhile, if control of Congress ever changes again, we can have Congress "rule" that gerrymandering is Constitutional, and then rule that it isn't. Come to think of it, that is a good way to basically get rid of the Constitution for all practical  as its meaning careens wildly around based on the flavor of the month and whatever enhances power for those in control.

In any event, Moore v. Harper will be an interesting case. Gerrymandering totally unleashed is indeed terrible public policy. As I stated in my court brief, the way we are going is that there will be almost no competitive CD seats among the 435, and we might as well skip general elections for the House since the results will be preordained. Then where are we? I take some very small credit for NYS having perhaps the highest number of competitive seats in the US.  

[Skill and Chance]

It looks like this case deals with the application of incredibly vague language like "elections shall be free" in the NC Constitution, but what if there is explicit language in the state constitution about how to draw the districts?  Is the legislature free to ignore that, too?  Could this case invalidate independent commissions?  Even if the legislature voted to establish the commission or put the amendment on the ballot?  Could it invalidate gubernatorial veto power over election laws?  What is the limit on how much is before the court here?

[ProgressiveModerate]

If the "constitutional originalist" justices are going to be that extreme with their originalism with the word "legislature" than maybe we should expand that so called "originalism" to the entire concept of striking down laws as given to the Supreme Court through Marbury vs Madison.

No where in the constitution does it "specifically" say that the Supreme Court has that power and is not "constitutional originality" so any justice that makes the Independent State Legislature Theory argument is a fraud because they're being selective in their interpretations.

I think we had this discussion before. Get your friends elected to the Senate en mass, and have them ask SCOTUS nominees if they support reversing Marbury v. Madison. If they say no, or refuse to answer, then they don't get confirmed.  Or go the court packing route of course, to get Marbury v, Madison haters on the court en mass. That will make SCOTUS almost like a sinecure since the work load will be so light. Meanwhile, if control of Congress ever changes again, we can have Congress "rule" that gerrymandering is Constitutional, and then rule that it isn't. Come to think of it, that is a good way to basically get rid of the Constitution for all practical  as its meaning careens wildly around based on the flavor of the month and whatever enhances power for those in control.

In any event, Moore v. Harper will be an interesting case. Gerrymandering totally unleashed is indeed terrible public policy. As I stated in my court brief, the way we are going is that there will be almost no competitive CD seats among the 435, and we might as well skip general elections for the House since the results will be preordained. Then where are we? I take some very small credit for NYS having perhaps the highest number of competitive seats in the US.  

I don't get any credit

The issue with this SCOTUS is not neccessarily that they don't follow the law, but rather that they seem completely oblivious to the consequences of a ruling. Liberals tend to be willing to consider the modern day implications of something, and it's why I fear this conservative SCOTUS is going to make more rulings that may technically have legal ground but cause more problems.

[David Hume]

If the "constitutional originalist" justices are going to be that extreme with their originalism with the word "legislature" than maybe we should expand that so called "originalism" to the entire concept of striking down laws as given to the Supreme Court through Marbury vs Madison.

No where in the constitution does it "specifically" say that the Supreme Court has that power and is not "constitutional originality" so any justice that makes the Independent State Legislature Theory argument is a fraud because they're being selective in their interpretations.

By original public meaning or original intent, it is clear that the court has judicial review power, even before Marbury. The theory that judicial review began from Marbury ruling is simply wrong. At the constitutional convention, judicial review was widely supported. Marbury is only the first case that SC struck down a federal law, but before that there were many other cases that federal court struck down federal or state laws.

[Libertas Vel Mors]

If the "constitutional originalist" justices are going to be that extreme with their originalism with the word "legislature" than maybe we should expand that so called "originalism" to the entire concept of striking down laws as given to the Supreme Court through Marbury vs Madison.

No where in the constitution does it "specifically" say that the Supreme Court has that power and is not "constitutional originality" so any justice that makes the Independent State Legislature Theory argument is a fraud because they're being selective in their interpretations.

I think we had this discussion before. Get your friends elected to the Senate en mass, and have them ask SCOTUS nominees if they support reversing Marbury v. Madison. If they say no, or refuse to answer, then they don't get confirmed.  Or go the court packing route of course, to get Marbury v, Madison haters on the court en mass. That will make SCOTUS almost like a sinecure since the work load will be so light. Meanwhile, if control of Congress ever changes again, we can have Congress "rule" that gerrymandering is Constitutional, and then rule that it isn't. Come to think of it, that is a good way to basically get rid of the Constitution for all practical  as its meaning careens wildly around based on the flavor of the month and whatever enhances power for those in control.

In any event, Moore v. Harper will be an interesting case. Gerrymandering totally unleashed is indeed terrible public policy. As I stated in my court brief, the way we are going is that there will be almost no competitive CD seats among the 435, and we might as well skip general elections for the House since the results will be preordained. Then where are we? I take some very small credit for NYS having perhaps the highest number of competitive seats in the US.  

I don't get any credit

The issue with this SCOTUS is not neccessarily that they don't follow the law, but rather that they seem completely oblivious to the consequences of a ruling. Liberals tend to be willing to consider the modern day implications of something, and it's why I fear this conservative SCOTUS is going to make more rulings that may technically have legal ground but cause more problems.

Then amend the law. It isn't the job of the courts to determine what outcomes is best, it is the job of the courts to apply the law.

[ProgressiveModerate]

If the "constitutional originalist" justices are going to be that extreme with their originalism with the word "legislature" than maybe we should expand that so called "originalism" to the entire concept of striking down laws as given to the Supreme Court through Marbury vs Madison.

No where in the constitution does it "specifically" say that the Supreme Court has that power and is not "constitutional originality" so any justice that makes the Independent State Legislature Theory argument is a fraud because they're being selective in their interpretations.

I think we had this discussion before. Get your friends elected to the Senate en mass, and have them ask SCOTUS nominees if they support reversing Marbury v. Madison. If they say no, or refuse to answer, then they don't get confirmed.  Or go the court packing route of course, to get Marbury v, Madison haters on the court en mass. That will make SCOTUS almost like a sinecure since the work load will be so light. Meanwhile, if control of Congress ever changes again, we can have Congress "rule" that gerrymandering is Constitutional, and then rule that it isn't. Come to think of it, that is a good way to basically get rid of the Constitution for all practical  as its meaning careens wildly around based on the flavor of the month and whatever enhances power for those in control.

In any event, Moore v. Harper will be an interesting case. Gerrymandering totally unleashed is indeed terrible public policy. As I stated in my court brief, the way we are going is that there will be almost no competitive CD seats among the 435, and we might as well skip general elections for the House since the results will be preordained. Then where are we? I take some very small credit for NYS having perhaps the highest number of competitive seats in the US.  

I don't get any credit

The issue with this SCOTUS is not neccessarily that they don't follow the law, but rather that they seem completely oblivious to the consequences of a ruling. Liberals tend to be willing to consider the modern day implications of something, and it's why I fear this conservative SCOTUS is going to make more rulings that may technically have legal ground but cause more problems.

Then amend the law. It isn't the job of the courts to determine what outcomes is best, it is the job of the courts to apply the law.

It's also the job of SCOTUS to clarify or even amend the meaning of the law based upon our society today and what is just, take a lot of civil rights rulings or gay marriage. And if something si really antiquated or not working, they can strike it down. It's not like SCOTUS just follows the constitution word for word till the end of time.

[Nyvin]

If the "constitutional originalist" justices are going to be that extreme with their originalism with the word "legislature" than maybe we should expand that so called "originalism" to the entire concept of striking down laws as given to the Supreme Court through Marbury vs Madison.

No where in the constitution does it "specifically" say that the Supreme Court has that power and is not "constitutional originality" so any justice that makes the Independent State Legislature Theory argument is a fraud because they're being selective in their interpretations.

By original public meaning or original intent, it is clear that the court has judicial review power, even before Marbury. The theory that judicial review began from Marbury ruling is simply wrong. At the constitutional convention, judicial review was widely supported. Marbury is only the first case that SC struck down a federal law, but before that there were many other cases that federal court struck down federal or state laws.

Irrelevant.  Strict textual interpretation of the Constitution does not mention judical review anywhere.  Applying the same standards that are set forth for Independent State Legislature Theory.

FYI- Original intent of redistricting was that it was a state's right to determine how to elect representatives, I'm pretty sure governors veto'd congressional maps going quite a ways back too. 

[Libertas Vel Mors]

If the "constitutional originalist" justices are going to be that extreme with their originalism with the word "legislature" than maybe we should expand that so called "originalism" to the entire concept of striking down laws as given to the Supreme Court through Marbury vs Madison.

No where in the constitution does it "specifically" say that the Supreme Court has that power and is not "constitutional originality" so any justice that makes the Independent State Legislature Theory argument is a fraud because they're being selective in their interpretations.

I think we had this discussion before. Get your friends elected to the Senate en mass, and have them ask SCOTUS nominees if they support reversing Marbury v. Madison. If they say no, or refuse to answer, then they don't get confirmed.  Or go the court packing route of course, to get Marbury v, Madison haters on the court en mass. That will make SCOTUS almost like a sinecure since the work load will be so light. Meanwhile, if control of Congress ever changes again, we can have Congress "rule" that gerrymandering is Constitutional, and then rule that it isn't. Come to think of it, that is a good way to basically get rid of the Constitution for all practical  as its meaning careens wildly around based on the flavor of the month and whatever enhances power for those in control.

In any event, Moore v. Harper will be an interesting case. Gerrymandering totally unleashed is indeed terrible public policy. As I stated in my court brief, the way we are going is that there will be almost no competitive CD seats among the 435, and we might as well skip general elections for the House since the results will be preordained. Then where are we? I take some very small credit for NYS having perhaps the highest number of competitive seats in the US.  

I don't get any credit

The issue with this SCOTUS is not neccessarily that they don't follow the law, but rather that they seem completely oblivious to the consequences of a ruling. Liberals tend to be willing to consider the modern day implications of something, and it's why I fear this conservative SCOTUS is going to make more rulings that may technically have legal ground but cause more problems.

Then amend the law. It isn't the job of the courts to determine what outcomes is best, it is the job of the courts to apply the law.

It's also the job of SCOTUS to clarify or even amend the meaning of the law based upon our society today and what is just, take a lot of civil rights rulings or gay marriage. And if something si really antiquated or not working, they can strike it down. It's not like SCOTUS just follows the constitution word for word till the end of time.

No, it's not. SCOTUS's job is to apply the law. Asking SCOTUS to make the law is both dangerous and un-republican.

Yes, but it should.

[ProgressiveModerate]

If the "constitutional originalist" justices are going to be that extreme with their originalism with the word "legislature" than maybe we should expand that so called "originalism" to the entire concept of striking down laws as given to the Supreme Court through Marbury vs Madison.

No where in the constitution does it "specifically" say that the Supreme Court has that power and is not "constitutional originality" so any justice that makes the Independent State Legislature Theory argument is a fraud because they're being selective in their interpretations.

I think we had this discussion before. Get your friends elected to the Senate en mass, and have them ask SCOTUS nominees if they support reversing Marbury v. Madison. If they say no, or refuse to answer, then they don't get confirmed.  Or go the court packing route of course, to get Marbury v, Madison haters on the court en mass. That will make SCOTUS almost like a sinecure since the work load will be so light. Meanwhile, if control of Congress ever changes again, we can have Congress "rule" that gerrymandering is Constitutional, and then rule that it isn't. Come to think of it, that is a good way to basically get rid of the Constitution for all practical  as its meaning careens wildly around based on the flavor of the month and whatever enhances power for those in control.

In any event, Moore v. Harper will be an interesting case. Gerrymandering totally unleashed is indeed terrible public policy. As I stated in my court brief, the way we are going is that there will be almost no competitive CD seats among the 435, and we might as well skip general elections for the House since the results will be preordained. Then where are we? I take some very small credit for NYS having perhaps the highest number of competitive seats in the US.  

I don't get any credit

The issue with this SCOTUS is not neccessarily that they don't follow the law, but rather that they seem completely oblivious to the consequences of a ruling. Liberals tend to be willing to consider the modern day implications of something, and it's why I fear this conservative SCOTUS is going to make more rulings that may technically have legal ground but cause more problems.

Then amend the law. It isn't the job of the courts to determine what outcomes is best, it is the job of the courts to apply the law.

It's also the job of SCOTUS to clarify or even amend the meaning of the law based upon our society today and what is just, take a lot of civil rights rulings or gay marriage. And if something si really antiquated or not working, they can strike it down. It's not like SCOTUS just follows the constitution word for word till the end of time.

No, it's not. SCOTUS's job is to apply the law. Asking SCOTUS to make the law is both dangerous and un-republican.

Yes, but it should.

The constitutional role of SCOTUS was quite vague from the founding and the Supreme Court has really established itself what it does and doesn’t do. SCOTUS applies the law, but ig what I’m trying to say is in many areas the law is vague or unclear and it’s their job to sort it out, and those uncertainties can change over time. 200 years ago no one was talking about weather the constitution protected gay marriage even though today that is an issue

[jamestroll]

if the Scotus implements this I will literally lose my mind.... I am going to have a nervous breakdown over this

If the "constitutional originalist" justices are going to be that extreme with their originalism with the word "legislature" than maybe we should expand that so called "originalism" to the entire concept of striking down laws as given to the Supreme Court through Marbury vs Madison.

No where in the constitution does it "specifically" say that the Supreme Court has that power and is not "constitutional originality" so any justice that makes the Independent State Legislature Theory argument is a fraud because they're being selective in their interpretations.

I think we had this discussion before. Get your friends elected to the Senate en mass, and have them ask SCOTUS nominees if they support reversing Marbury v. Madison. If they say no, or refuse to answer, then they don't get confirmed.  Or go the court packing route of course, to get Marbury v, Madison haters on the court en mass. That will make SCOTUS almost like a sinecure since the work load will be so light. Meanwhile, if control of Congress ever changes again, we can have Congress "rule" that gerrymandering is Constitutional, and then rule that it isn't. Come to think of it, that is a good way to basically get rid of the Constitution for all practical  as its meaning careens wildly around based on the flavor of the month and whatever enhances power for those in control.

In any event, Moore v. Harper will be an interesting case. Gerrymandering totally unleashed is indeed terrible public policy. As I stated in my court brief, the way we are going is that there will be almost no competitive CD seats among the 435, and we might as well skip general elections for the House since the results will be preordained. Then where are we? I take some very small credit for NYS having perhaps the highest number of competitive seats in the US. 

I don't get any credit

The issue with this SCOTUS is not neccessarily that they don't follow the law, but rather that they seem completely oblivious to the consequences of a ruling. Liberals tend to be willing to consider the modern day implications of something, and it's why I fear this conservative SCOTUS is going to make more rulings that may technically have legal ground but cause more problems.

my thoughts exactly.


the potential of ruling is literally making me ill and sick

[It’s so Joever]

If they pull this, California and other D states should not have a single R district. Spaghetti mander the s**t out of it all, may all rural voters be suppressed and kept from voting as much as possible as well.

[Devils30]

Lets get rid of the VRA as well and have the most independent state legislature ever!

https://davesredistricting.org/maps#viewmap::abeaeaf0-fa0b-4365-a4e6-59e8fd32316f

[I spent the winter writing songs about getting better]

Lets get rid of the VRA as well and have the most independent state legislature ever!

https://davesredistricting.org/maps#viewmap::abeaeaf0-fa0b-4365-a4e6-59e8fd32316f

There's nothing in the VRA that would prohibit this map...I don't know how many times it needs to be explained that the VRA does not mandate black majority districts, or even districts that are likely to elect a black Representative.

[politicallefty]

How long will this last if Kevin McCarthy is denied a district?

[GALeftist]

Who would ISL even benefit next cycle if implemented? Ohio and North Carolina are getting redistricted anyway and their hack courts are going to allow whatever they end up doing. Wisconsin can't really be any worse than what it is already, which is 6-2. Minnesota's got a D trifecta now and Democrats won the PA State House so even without gubernatorial vetoes they're not getting anything better for them than the current maps through either state, in fact I'd bet that MN would get a D gerrymander. NY and MD would also obviously get D gerrymanders. If commissions were disallowed that would be even better from a partisan perspective, opening up opportunities in WA, CA, CO if Polis plays ball, and now MI. I guess maybe they could gerrymander AZ if the court disallows gubernatorial vetoes? Or VA if they get the trifecta in 2023? IDK, seems pointless.

[Skill and Chance]

Well, it seems pretty clear there are at most 3 votes for any of the crazy stuff (Alito, Gorsuch, Thomas).  On top of that, just about every justice acknowledged the governor's veto as legitimate.  The early referendum precedent also came up.

Barrett may not accept the ISL at all.

Kavanaugh and Roberts wanted a very high standard that would only prevent state courts from "acting as a legislature" and kept going back to Rhenquist's concurrence in Bush v. Gore.

Most likely result is probably some kind of ruling that a state court can strike down a legislature's map under the state constitution, but can't then draw its own map unilaterally in response.  Worst case is probably a general vs. specific constitutional language kind of test.  Best case is keeping as much deference to state courts as in the 2010's. 

[GALeftist]

Well, it seems pretty clear there are at most 3 votes for any of the crazy stuff (Alito, Gorsuch, Thomas).  On top of that, just about every justice acknowledged the governor's veto as legitimate.  The early referendum precedent also came up.

Barrett may not accept the ISL at all.

Kavanaugh and Roberts wanted a very high standard that would only prevent state courts from "acting as a legislature" and kept going back to Rhenquist's concurrence in Bush v. Gore.

Most likely result is probably some kind of ruling that a state court can strike down a legislature's map under the state constitution, but can't then draw its own map unilaterally in response.  Worst case is probably a general vs. specific constitutional language kind of test.  Best case is keeping as much deference to state courts as in the 2010's. 

So I'm not a SCOTUS judge but this seems like a recipe for disaster. It'll be even worse than Ohio in states like Pennsylvania because the legislature simply will not be able to pass a map. If the court doesn't impose a map then there will simply not be one. In states like NY I doubt the state legislature is going to willingly draw a fair map. What is the point?

[Skill and Chance]

Well, it seems pretty clear there are at most 3 votes for any of the crazy stuff (Alito, Gorsuch, Thomas).  On top of that, just about every justice acknowledged the governor's veto as legitimate.  The early referendum precedent also came up.

Barrett may not accept the ISL at all.

Kavanaugh and Roberts wanted a very high standard that would only prevent state courts from "acting as a legislature" and kept going back to Rhenquist's concurrence in Bush v. Gore.

Most likely result is probably some kind of ruling that a state court can strike down a legislature's map under the state constitution, but can't then draw its own map unilaterally in response.  Worst case is probably a general vs. specific constitutional language kind of test.  Best case is keeping as much deference to state courts as in the 2010's. 

So I'm not a SCOTUS judge but this seems like a recipe for disaster. It'll be even worse than Ohio in states like Pennsylvania because the legislature simply will not be able to pass a map. If the court doesn't impose a map then there will simply not be one. In states like NY I doubt the state legislature is going to willingly draw a fair map. What is the point?

Presumably a federal court would be able to step in and draw if the clock was running out?

[Gass3268]

Well, it seems pretty clear there are at most 3 votes for any of the crazy stuff (Alito, Gorsuch, Thomas).  On top of that, just about every justice acknowledged the governor's veto as legitimate.  The early referendum precedent also came up.

Barrett may not accept the ISL at all.

Kavanaugh and Roberts wanted a very high standard that would only prevent state courts from "acting as a legislature" and kept going back to Rhenquist's concurrence in Bush v. Gore.

Most likely result is probably some kind of ruling that a state court can strike down a legislature's map under the state constitution, but can't then draw its own map unilaterally in response.  Worst case is probably a general vs. specific constitutional language kind of test.  Best case is keeping as much deference to state courts as in the 2010's. 

So I'm not a SCOTUS judge but this seems like a recipe for disaster. It'll be even worse than Ohio in states like Pennsylvania because the legislature simply will not be able to pass a map. If the court doesn't impose a map then there will simply not be one. In states like NY I doubt the state legislature is going to willingly draw a fair map. What is the point?

Presumably a federal court would be able to step in and draw if the clock was running out?

Yet in the case of Ohio they just gave deference to the legislature's map, which defeated the whole point.