The Supreme Court s Elections Muddle – WSJ

In other words, partisan state judges read a ban against political gerrymanders into the penumbra of state law. As a result, Democrats carried three more Congressional seats under a court redrawn map last November than they were predicted to under the Legislature s.

GOP lawmakers argued that the North Carolina court s ruling violated the U.S. Constitution s Elections Clause, which requires the Legislature of each state to prescribe [t]he Times, Places and Manner of federal elections. They claimed state courts may not strike down a legislature s maps or voting laws affecting federal elections.

Chief Justice John Roberts rebuffs this reading of the Elections Clause with a middle of the road, or muddle of the road, decision. On the one hand, he says state legislatures are subject to state judicial review under the state constitution when they write election law.

But he also stresses that state courts do not have free rein and this Court has an obligation to ensure that state court interpretations of state law do not evade federal law. So state court election rulings will be subject to U.S. Supreme Court review.

Yet the majority declined to adopt a standard for reviewing such state court decisions. The questions presented in this area are complex and context specific, the Chief writes. We hold only that state courts may not transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections.

But what does ordinary bounds mean? Perhaps as with pornography, the Court will know it when it sees it. But in practice any review is likely to be highly deferential to state courts, as Justice Brett Kavanaugh notes in a concurrence. He favors Chief Justice William Rehnquist s standard in Bush v. Gore (2000) that considers whether the state court impermissibly distorted state law beyond what a fair reading required.

As Justice Clarence Thomas explains in a dissent joined by Justice Neil Gorsuch, it seems likely that the bounds of ordinary judicial review will be a forgiving standard in practice, swelling courts with election lawsuits that will be quickly resolved with generic statements of deference to the state courts.

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