The Court’s decision to hear the Moore case is very odd
Since four justices have already called for cases like Davis and Arizona State Legislature to be overruled or significantly altered, it’s not surprising that the Court decided to hear a case that could potentially do so — under the Supreme Court’s rules, four votes are needed to place a case on the Court’s docket of cases that receive full briefing and oral argument.
But it is surprising that the Court thought Moore was an appropriate vehicle to hear an independent state legislature doctrine case. That’s because, even if you accept Gorsuch’s theory that the state legislature and not the state judiciary bears “primary responsibility for setting election rules,” the North Carolina legislature explicitly authorized its state’s courts to hear gerrymandering lawsuits.
In other words, even if the independent state legislature doctrine is valid, North Carolina’s courts are still allowed to decide gerrymandering cases because the state legislature told them to do so.
North Carolina law provides that lawsuits challenging “any act of the General Assembly that apportions or redistricts State legislative or congressional districts” may be filed “in the Superior Court of Wake County and shall be heard and determined by a three‑judge panel.” This court’s decision may then be appealed to the state supreme court.
Indeed, North Carolina’s laws — again, laws that were written by the state legislature — provide detailed instructions on how state courts should behave when they determine that a legislative map is illegal. One statute requires state courts to “find with specificity all facts supporting” its conclusion that a map is illegal. Another provides that, after a state court strikes down a redistricting plan, it may not “impose its own substitute plan unless the court first gives the General Assembly a period of time to remedy any defects identified by the court.”
In its eagerness to hear an independent state legislature doctrine case, in other words, the Supreme Court appears to have taken up a case where there is no legitimate legal conflict. Even if state legislatures have exclusive authority to shape a state’s election law, the North Carolina state legislature used this authority to explicitly empower state courts to strike down gerrymandered maps.
And yet, it’s hard to imagine why the Court would agree to hear this case unless it is at least considering rolling back decisions like Davis and Arizona State Legislature.