I have written this post for the State and Local Government Law Blog. A taste:

But the same issue may resurface, with a more conservative Supreme Court majority, as to the power of state courts to apply state constitutions in reining in gerrymandering of congressional districts. We can expect the North Carolina supreme court—and possibility the Pennsylvania Supreme Court—to give close scrutiny to any maps that emerge out of any political process. Both states feature the same political configuration: a Republican-dominated legislature, Democratic-majority state Supreme Court, and Democratic governor. In North Carolina, however, state law allows the state legislature to pass a plan without the governor’s consideration, so it is here where we are most likely to see a partisan gerrymander of political districts emerge out of the political process. (Wisconsin has a similar consideration, except it has a Republican-majority supreme court.)

If, as expected, one or more of these state supreme courts rein in partisan gerrymandering of congressional districts by applying state constitutional protections for free and fair elections against the desires of the state legislature, the Article I, section 4 issue will come to the fore again. Known as the “independent state legislature” theory, it has implications far beyond the question of redistricting, as I detail in a new paper, “Identifying and Minimizing the Risk of Election Subversion and Stolen Elections in the Contemporary United States.”

But focusing on redistricting, the independent state legislature theory may well enmesh federal courts once again in the question of partisan gerrymandering, albeit it in an orthogonal way. State supreme courts will strike partisan gerrymanders of congressional maps, and Republicans will complain in federal court about state supreme court decisions limiting partisan gerrymandering of congressional districts. They will ask federal courts to hold that state supreme courts exceeded their power.