SCOTUS hints it may punt on Moore v. Harper.

[I spent the winter writing songs about getting better]

https://www.nbcnews.com/politics/supreme-court/supreme-court-signals-side-step-ruling-major-elections-case-rcna73185

In a nutshell it just requested additional briefs from all parties involved in light of the North Carolina Supreme Court retaking the case. This implies they may consider that the case is now legally moot. This would be an easy off-ramp to avoid having to make any notable decision on the independent state legislature theory.

[Unbeatable Titan Susan Collins]

Agreed. I think they moot this one.

[SnowLabrador]

I'll believe it when I see it.

[Skill and Chance]

Interesting.  Probably a very good thing for the legal left if this just gets punted to the 2031 redistricting cycle.  I guess having it as a live wire during the 2024 election could be a concern, but Congress already acted on electoral vote certification procedures in a way that should put it safely outside the scope of independent state legislature arguments.

[NewYorkExpress]

I feel like what happened here is that Roberts and at least one of Gorsuch/Kavanaugh/Coney Barrett made it clear that they would side with the liberal wing, so they just decided to punt on the question.

[World politics is up Schmitt creek]

I feel like what happened here is that Roberts and at least one of Gorsuch/Kavanaugh/Coney Barrett made it clear that they would side with the liberal wing, so they just decided to punt on the question.

Possibly, but if so, it would have been Kav or ACB. The independent state legislature theory is one of the things Gorsuch is randomly far-right on, not one of the things he's randomly woke-adjacent on.

[Torie]

SCOTUS read the election returns in NC.

The theory will come back. There is no escape.

[Skill and Chance]

SCOTUS read the election returns in NC.

The theory will come back. There is no escape.

Maybe, but it was already a close call today.  In all likelihood, if it doesn't come back until 2031+, it won't come before a court this conservative. 

[Skill and Chance]

I feel like what happened here is that Roberts and at least one of Gorsuch/Kavanaugh/Coney Barrett made it clear that they would side with the liberal wing, so they just decided to punt on the question.

Possibly, but if so, it would have been Kav or ACB. The independent state legislature theory is one of the things Gorsuch is randomly far-right on, not one of the things he's randomly woke-adjacent on.

Yes, if you read the oral arguments, Gorsuch was the most dead set on nothing at the state level being able to constrain the legislature's actions on election law, except maybe the governor's veto because that was part of passing legislation at the founding. 

Part of me hopes Roberts retires for Biden just so that we can get the most absolutist 2nd Amendment and 4th Amendment decisions from Gorsuch at the same time!

[Torie]

SCOTUS read the election returns in NC.

The theory will come back. There is no escape.

Maybe, but it was already a close call today.  In all likelihood, if it doesn't come back until 2031+, it won't come before a court this conservative.  

I did not mean to imply that Court was itching to embrace the theory. In fact, I would be shocked if it did. Roberts made plain where he was at in Q and A. It is only when a state supreme court uses a vague state equal protection clause, and then in essence writes its own redistricting legislation, that it becomes a bridge too far. Enforcing more specific state constitutional provisions adopted by referenda is fine.

But the jurisprudence to get there is quite policy oriented, and I can appreciate why Roberts would rather just write nothing at all.

But while NC will probably reverse its own decision, places like PA are out there, where the court is used to drawing maps under an equally vague equal protection clause, and that court is not going to be taken over by conservatives any time soon.

[Skill and Chance]

Also, I wouldn't really think of Gorsuch as far-right or woke.  It's more that he will never, ever let legal tradition override the most literal reading of a text, no matter how longstanding that tradition is.  In some cases, the literal reading is much more inclusive than the traditional interpretation adopted after it passed (think of all the late 19th century SCOTUS decisions that basically neutered the 14th Amendment).  In other cases, the literal reading forbids something the government has been doing regularly and uncontroversially for 50+ years. 

It's the constitutional law equivalent of sola scriptura.   

[politicallefty]

I feel like what happened here is that Roberts and at least one of Gorsuch/Kavanaugh/Coney Barrett made it clear that they would side with the liberal wing, so they just decided to punt on the question.

Possibly, but if so, it would have been Kav or ACB. The independent state legislature theory is one of the things Gorsuch is randomly far-right on, not one of the things he's randomly woke-adjacent on.

Yes, if you read the oral arguments, Gorsuch was the most dead set on nothing at the state level being able to constrain the legislature's actions on election law, except maybe the governor's veto because that was part of passing legislation at the founding. 

Part of me hopes Roberts retires for Biden just so that we can get the most absolutist 2nd Amendment and 4th Amendment decisions from Gorsuch at the same time!

Gorsuch really is the most idiosyncratic Justice on the Court right now. He can be hard to figure out sometimes. On the Elections Clause, he did appear to lean towards a hyper-literalist stance. I'm a pretty staunch textualist myself, but a legislature is bound both by the United States Constitution and its respective states constitution. I think the only exception to that is Article V. (I'm pretty sure I made that point in the topic at the time.)

I won't comment on the 2nd Amendment, but I don't entirely trust Gorsuch on the 4th Amendment. His dissent in Carpenter read as a concurrence, but he didn't vote as such. I found that quite odd. He was also in dissent in Torres v. Madrid. I'm also concerned that he would overturn Katz. I doubt anything can be crafted that would protect personal liberties under the 4th than what was determined through Katz.

[Skill and Chance]

I feel like what happened here is that Roberts and at least one of Gorsuch/Kavanaugh/Coney Barrett made it clear that they would side with the liberal wing, so they just decided to punt on the question.

Possibly, but if so, it would have been Kav or ACB. The independent state legislature theory is one of the things Gorsuch is randomly far-right on, not one of the things he's randomly woke-adjacent on.

Yes, if you read the oral arguments, Gorsuch was the most dead set on nothing at the state level being able to constrain the legislature's actions on election law, except maybe the governor's veto because that was part of passing legislation at the founding. 

Part of me hopes Roberts retires for Biden just so that we can get the most absolutist 2nd Amendment and 4th Amendment decisions from Gorsuch at the same time!

Gorsuch really is the most idiosyncratic Justice on the Court right now. He can be hard to figure out sometimes. On the Elections Clause, he did appear to lean towards a hyper-literalist stance. I'm a pretty staunch textualist myself, but a legislature is bound both by the United States Constitution and its respective states constitution. I think the only exception to that is Article V. (I'm pretty sure I made that point in the topic at the time.)

I won't comment on the 2nd Amendment, but I don't entirely trust Gorsuch on the 4th Amendment. His dissent in Carpenter read as a concurrence, but he didn't vote as such. I found that quite odd. He was also in dissent in Torres v. Madrid. I'm also concerned that he would overturn Katz. I doubt anything can be crafted that would protect personal liberties under the 4th than what was determined through Katz.

OK, that's a fair point.  Enforcing all of the 19th century tribal treaties literally will still be epic on it's own, though.

[Mr.Phips]

SCOTUS read the election returns in NC.

The theory will come back. There is no escape.

Maybe, but it was already a close call today.  In all likelihood, if it doesn't come back until 2031+, it won't come before a court this conservative.  

I did not mean to imply that Court was itching to embrace the theory. In fact, I would be shocked if it did. Roberts made plain where he was at in Q and A. It is only when a state supreme court uses a vague stat equal protection clause, and then in essence writes its own redistricting legislation, that it becomes a bridge too far. Enforcing more specific state constitutional provisions adopted by referenda is fine.

But the jurisprudence to get there is quite policy oriented, and I can appreciate why Roberts would rather just write nothing at all.

But while NC will probably reverse its own decision, places like PA are out there, where the court is used to drawing maps under an equally vague equal protection clause, and that court is not going to be taken over by conservatives any time soon.

If Dems ever get a trifecta in PA, they need to get independent redistricting on the ballot ASAP.  They can’t have another 2011 with Republicans unilaterally drawing the maps again.

[Skill and Chance]

SCOTUS read the election returns in NC.

The theory will come back. There is no escape.

Maybe, but it was already a close call today.  In all likelihood, if it doesn't come back until 2031+, it won't come before a court this conservative. 

I did not mean to imply that Court was itching to embrace the theory. In fact, I would be shocked if it did. Roberts made plain where he was at in Q and A. It is only when a state supreme court uses a vague stat equal protection clause, and then in essence writes its own redistricting legislation, that it becomes a bridge too far. Enforcing more specific state constitutional provisions adopted by referenda is fine.

But the jurisprudence to get there is quite policy oriented, and I can appreciate why Roberts would rather just write nothing at all.

But while NC will probably reverse its own decision, places like PA are out there, where the court is used to drawing maps under an equally vague equal protection clause, and that court is not going to be taken over by conservatives any time soon.

If Dems ever get a trifecta in PA, they need to get independent redistricting on the ballot ASAP.  They can’t have another 2011 with Republicans unilaterally drawing the maps again.

They would have to win both chambers of the legislature and hold them for 2 consecutive elections to put a measure on the ballot in PA.  The governor is irrelevant for referring ballot measures.

[World politics is up Schmitt creek]

Also, I wouldn't really think of Gorsuch as far-right or woke.  It's more that he will never, ever let legal tradition override the most literal reading of a text, no matter how longstanding that tradition is.  In some cases, the literal reading is much more inclusive than the traditional interpretation adopted after it passed (think of all the late 19th century SCOTUS decisions that basically neutered the 14th Amendment).  In other cases, the literal reading forbids something the government has been doing regularly and uncontroversially for 50+ years. 

It's the constitutional law equivalent of sola scriptura.   

I agree. I used those terms as shorthand.

[Mr.Phips]

SCOTUS read the election returns in NC.

The theory will come back. There is no escape.

Maybe, but it was already a close call today.  In all likelihood, if it doesn't come back until 2031+, it won't come before a court this conservative.  

I did not mean to imply that Court was itching to embrace the theory. In fact, I would be shocked if it did. Roberts made plain where he was at in Q and A. It is only when a state supreme court uses a vague stat equal protection clause, and then in essence writes its own redistricting legislation, that it becomes a bridge too far. Enforcing more specific state constitutional provisions adopted by referenda is fine.

But the jurisprudence to get there is quite policy oriented, and I can appreciate why Roberts would rather just write nothing at all.

But while NC will probably reverse its own decision, places like PA are out there, where the court is used to drawing maps under an equally vague equal protection clause, and that court is not going to be taken over by conservatives any time soon.

If Dems ever get a trifecta in PA, they need to get independent redistricting on the ballot ASAP.  They can’t have another 2011 with Republicans unilaterally drawing the maps again.

They would have to win both chambers of the legislature and hold them for 2 consecutive elections to put a measure on the ballot in PA.  The governor is irrelevant for referring ballot measures.

The state senate is the biggest obstacle to this.  Dems need three for control in 2024 and have one almost certain pickup in Harrisburg.  They would probably be favored for control (and a trifecta) after 2024 had two lazy Dem incumbents not lost re-election even as Clinton and Biden were winning their seats in 2016 and 2020 respectively.   The GOP incumbent who now sits in the Erie seat seems basically unbeatable and the one in the Pittsburgh suburbs had his seat changed to a Trump 2020 district (albeit narrow) in redistricting.

[David Hume]

SCOTUS read the election returns in NC.

The theory will come back. There is no escape.

Maybe, but it was already a close call today.  In all likelihood, if it doesn't come back until 2031+, it won't come before a court this conservative. 

If WISC struck down their maps, it will come for sure before 2031.

[Skill and Chance]

SCOTUS read the election returns in NC.

The theory will come back. There is no escape.

Maybe, but it was already a close call today.  In all likelihood, if it doesn't come back until 2031+, it won't come before a court this conservative. 

If WISC struck down their maps, it will come for sure before 2031.

If they are smart, they only sue over the state legislative maps this year, then wait for a Dem legislature to redraw the congressional map in 2025. 

[Mr.Phips]

SCOTUS read the election returns in NC.

The theory will come back. There is no escape.

Maybe, but it was already a close call today.  In all likelihood, if it doesn't come back until 2031+, it won't come before a court this conservative. 

If WISC struck down their maps, it will come for sure before 2031.

If they are smart, they only sue over the state legislative maps this year, then wait for a Dem legislature to redraw the congressional map in 2025. 

I don’t see how they could sue over the congressional map.  It’s a neutral map.  Geography just sucks for Dems in Wisconsin.

[I spent the winter writing songs about getting better]

Yeah the Wisconsin Congressional map isn't really a fight worth taking. The truth is the 1st is currently slightly beyond the cusp of competitive right now but with some trends could become winnable by the end of the decade, and isn't going to get any better for Democrats without a blatant D gerrymander. The 3rd is maybe winnable especially as the current incumbent seems to be weak and a bit of an idiot, but it's also close to a vote sink. No "fair" map is going to be better for Democrats on those seats than they currently are and I guarantee would result in just 2 Biden seats and 2 Evers 2018 seats as well (it's possible that a narrow 3rd Evers 2022 seat might result, but such a seat would probably still be Lean R in any neutral environment.)

It's like Kansas, it's also a gross gerrymander but Davids seems to be safe and the district is only trending her way, so best to just let it be for now.

[Skill and Chance]

I would like to see fair standards for congressional map drawing everywhere.  However, one seat isn't worth ISLT flaring back up right before the 2024 presidential election.  Ideally, the issue stays moot until at least 2031.

[David Hume]

SCOTUS read the election returns in NC.

The theory will come back. There is no escape.

Maybe, but it was already a close call today.  In all likelihood, if it doesn't come back until 2031+, it won't come before a court this conservative. 

If WISC struck down their maps, it will come for sure before 2031.

If they are smart, they only sue over the state legislative maps this year, then wait for a Dem legislature to redraw the congressional map in 2025. 

They won't be able to win back state legs without a heavy D gerrymander. The geography is simply too bad for them.

[Vosem]

I feel like what happened here is that Roberts and at least one of Gorsuch/Kavanaugh/Coney Barrett made it clear that they would side with the liberal wing, so they just decided to punt on the question.

I think what happened here is that the case actually became legally moot once the North Carolina Supreme Court decided to revisit the question. SCOTUS has ignored mootness rules in the past in cases where it feels actors are deliberately abusing mootness rules to try to prevent SCOTUS from hearing a case (as with the New York gun laws), but that doesn't seem to be the case here: the associates of the political actors that want SCOTUS to hear Moore are the ones making the case moot. It would be pretty unusual for SCOTUS to hear it under those circumstances.

[ProgressiveModerate]

SCOTUS read the election returns in NC.

The theory will come back. There is no escape.

Maybe, but it was already a close call today.  In all likelihood, if it doesn't come back until 2031+, it won't come before a court this conservative. 

If WISC struck down their maps, it will come for sure before 2031.

If they are smart, they only sue over the state legislative maps this year, then wait for a Dem legislature to redraw the congressional map in 2025. 

They won't be able to win back state legs without a heavy D gerrymander. The geography is simply too bad for them.

I think the only way Ds have any shot at the legistlature this decade is if they universally do better in smaller cities Green Bay and Appleton which host swing or R-leaning seats, and are actually able to flip a few seats in WOW. Under a fair map, Ds should be able to keep Rs out of a supermajority barring an R wave, which is still significant.