Supreme Court Ruling Could Blow Up Republican House Control Going Forward

The Supreme Court is considering a case brought by North Carolina Republicans that seeks to allow state legislatures to effectively have carte blanche over drawing congressional district maps.

If it were to grant the application, some believe that the decision could backfire on Republicans, who currently only maintain a slim majority in the House of Representatives, as it would allow California's Democrat-heavy state legislature to redraw district boundaries in their favor.

The outcome of the case could have far-reaching effects: the Democrats lost control of the U.S. House of Representatives by four seats in 2022, while at least three Republican seats in California have slim GOP majorities.

In December, Supreme Court justices heard arguments from lawyers in the Moore v Harper case, which involves whether or not the Constitution grants individual state legislatures autonomy over elections.

The lawsuit argues in favor of the "independent state legislature theory" that the North Carolina Supreme Court didn't have the authority to reject maps the state's legislature had drawn up because it gave preference to Republican candidates.

The North Carolina Supreme Court imposed its own maps, which saw an equal number of Democrats and Republicans elected to Congress.

The independent state legislature theory advocates a constitutional basis for state lawmakers to gerrymander electoral maps in their party's favor.

Gerrymandering is the manipulation of electoral boundaries to influence the proportion of votes in that constituency in favor of one party or another. As the population grows and shifts, district borders have to be redrawn so constituents are fairly represented—but it is a delicate process to avoid boundary changes having a significant impact on the outcome of elections.

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."

However, there is disagreement about how much power the clause delegates to state authorities, and which ones it is specifying.

While advocates of the theory argue the word "legislature" refers directly to state legislatures, the common understanding to date is that this refers to a state's public institutions generally—including the governor and Supreme Court, which can block new election maps if they find the maps don't comply with the state's constitution.

Legal experts at the Brennan Center for Justice 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."

"There's merit behind the idea that the state legislature should have primacy, in part because that's what the Constitution says," Douglas Spencer, an associate professor of law at the University of Colorado, who manages the All About Redistricting website, told Newsweek. "But I do worry about being so literal."

He added: "Historically, the Supreme Court's already accepted certain checks like a gubernatorial veto and a state Supreme Court holding legislative act accountable under the state constitution. They've already done this, so to change 150 years' worth of precedent and practice, I feel like it's too disruptive."

The case brought by North Carolina Republicans argues the Supreme Court "should intervene to protect the Constitution's allocation of power over this matter of fundamental importance to our democratic system of government."

While the lawsuit intends to allow state legislatures in North Carolina to set their own district maps without intervention, some believe it could open the door to Democratic gerrymandering in California, making Democrat control of the U.S. House of Representatives far more likely.

Situation in California

At present, California has 12 Republican members of Congress—including House Speaker Kevin McCarthy—out of 52 Representatives. Republicans have a majority of four in the house, meaning a shift in election boundaries in California could flip its control.

"This summer, SCOTUS may rule in favor of Independent State Legislature Theory—giving state legislatures full control over redistricting," Brent Peabody, a contributor to Foreign Policy magazine, wrote in a tweet on Tuesday that has since been seen more than 410,000 times.

"It would backfire on [Republicans] spectacularly," the graduate student at the Harvard Kennedy School added. "How? By letting CA's legislature to draw a 48D-4R gerrymander. Rs would struggle to win the House again."

However, Patrick Band, a town planner and member of the California Democratic Party, responded that it was "highly unlikely" the ruling would overturn the state's "voter-approved" redistricting commission.

The North Carolina Supreme Court overturned its own decision in late April after its control changed, which Spencer said meant "there's no controversy anymore." He suspected the odds of the Supreme Court ruling in favor in the Moore v Harper case were "very, very low—maybe 10 percent."

But he noted that there was another lawsuit out of Ohio that "poses the same question," without a reversal from the state Supreme Court, adding: "It does not seem like there [are] five votes on the Supreme Court to give the state legislature unfettered ability to do anything, but there is some concern that the checks that are being used by courts were going too far.

"So, it does seem like the court is going to find some way to create a limit on the kind of checks you can put on a state legislature, while still accepting some checks would be acceptable."

Newsweek approached Tim Moore, North Carolina's Republican House speaker, who brought the Supreme Court case, via email for comment on Wednesday.

In 2008, a ballot measure shifted control of California's redistricting to a 14-member bipartisan commission, consisting of five Democrats, five Republicans and four independents. It was supported by 51 percent of voters.

The latest congressional maps drawn by the commission were supported by its members unanimously, and resulted in no lawsuits—which Republican commission member Russell Yee described as "a testament to the effectiveness of California's open, publicly accessible redistricting process."

Some social media users suggested this commission could be overridden by the state legislature or another ballot vote, but it is unclear if Democrats would be willing to do so. Newsweek approached the California Democratic Party for comment via email on Wednesday.

Spencer noted that in 2014, the Supreme Court heard a case about Arizona's independent commission, which was created by a ballot initiative to cut out the state legislature from the redistricting process entirely. It upheld the constitutionality of the commission.

"One of the concerns that I have about Moore v Harper or the case from Ohio is that in the midst of articulating an independent state legislature theory, the Supreme Court could overturn that 2014 case—say 'we were wrong'—and then all those independent commissions immediately vanish," he said.

Asked about the possibility of a favorable ruling benefiting Democrat state lawmakers, Spencer responded: "Absolutely, in part because most of the states that have adopted independent [commissions] have been blue states, and a strong independent state legislature theory would invalidate those redistricting commissions. In which case, it would free up Democrats to gerrymander in their favor."

Meanwhile, Democrats in New York are currently mounting their own legal challenge to use maps drawn by their own non-partisan commission, after maps the legislature drew were found by the New York Supreme Court to be biased in favor of Democrats. If successful, this too could see more Democrats elected to Congress at the next election.

Update 05/25/23, 3:13 a.m. ET: This article was updated to include additional information and comment from Douglas Spencer.