Rick Pildes already flagged today’s Supreme Court order in the North Carolina partisan gerrymandering case. And I agree with his bottom line conclusion that the Court is almost certain to take this case, when it comes up in the regular course (and not on the emergency shadow docket) for decision some time next year. It only takes 4 Justices to agree to hear such a case, and 4 said they want to hear it.

I also agree with Mark Joseph Stern at Slate that Justice Alito was particularly disingenuous in his analysis today in his concurring opinion (joined by Justices Gorsuch and Thomas):

The Supreme Court has never endorsed this doctrine, and has explicitly rejected it as recently as 2015. There is a good reason why: It contradicts the original meaning of the elections clause as well as historical practice reaching back to the early days of the republic. A mountain of evidence proves that framers never intended to give states lone authority over federal elections, and instead expected state constitutions to impose substantive limits on election law. Exhaustive research demonstrates that—aside from a few opportunistic arguments raised by congressional partisans in the 19th century—state legislatures, state courts, federal courts, and Congress have all rejected the doctrine for more than two centuries.

And yet, for nearly two decades, the conservative legal movement, working alongside Republican politicians, has pushed relentlessly to enshrine this theory into law. It nearly succeeded during the 2020 election, when Justices Clarence Thomas, Sam Alito, Neil Gorsuch, and Brett Kavanaugh deployed the theory in an effort to void thousands of disproportionately Democratic ballots. They failed, but their stance encouraged Republicans to try again this year—hence Monday’s cases….

y contrast, the North Carolina case teed up the elections clause issue perfectly, and thus divided the court. Because it’s a shadow docket order, we don’t know exactly how each justice voted, but it appears that Chief Justice John Roberts and Justice Amy Coney Barrett joined the liberals in turning away the challenge without comment. Kavanaugh wrote that Republicans had “advanced serious arguments on the merits” but concluded that it was too late for the federal judiciary to intervene, citing the Purcell principle. Alito, joined by Thomas and Gorsuch, dissented, declaring the the North Carolina Supreme Court had likely violated the elections clause by striking down the legislature’s congressional map.

Alito’s dissent, which wholeheartedly adopted the independent state legislature doctrine, is a masterclass in disingenuity. He omitted more than a century of SCOTUS precedent rejecting the doctrine. He ignored the Purcell principle, which he has consistently used to halt lower court orders protecting voting rights. He disregarded the North Carolina legislature’s express approval of judicial supervision over redistricting. And he dismissed the North Carolina Supreme Court’s decision as mere “legislation”—even though the majority engaged in an exhaustive overview of the state constitution’s guarantee that “all elections shall be free.”

“This guarantee of ‘free elections’ dates all the way back to the North Carolina Constitution of 1776,” Alito wrote, “but for 246 years that language was not found to prohibit partisan gerrymandering.” Implying that the court’s Democratic majority was motivated by politics rather than law, he fumed: “Only this year did the State Supreme Court change course and discern in the State Constitution a judicially enforceable prohibition of partisan gerrymandering.” (The long dormancy of a constitutional provision did not stop him from adopting a novel reading of the Second Amendment in 2008.)

Alito also complained that the North Carolina Supreme Court cited state constitutional guarantees of free speech, assembly, and association, which “make no reference to elections.” Unmentioned is the glaring fact that the First Amendment does not mention elections, either, yet Alito has repeatedly used it to strike down election regulations. (It seems supporting Republican candidates counts as free speech while supporting Democratic candidates does not.)

Perhaps the most galling aspect of Alito’s dissent, though, is its hypocrisy. When the court prohibited federal courts from evaluating partisan redistricting in 2019, it assured the nation that state Supreme Courts could still strike down such gerrymanders. “Our conclusion [does not] condemn complaints about districting to echo into a void,” the court insisted. Alito, Thomas, and Gorsuch joined this opinion. Now they’ve revealed it was a bait-and-switch.

If J. Kavanaugh ultimately goes along with the Alito reasoning, it will take only one more Justice to agree in order to overturn over two centuries of practice involving interpretation of state election law by state courts. Chief Justice Roberts’ dissent in the Arizona redistricting case from 2015 put him very much in sympathy with Alito’s position on the merits; he might demur for prudential reasons, but who knows? And Justice Amy Coney Barrett is a complete mystery, as she has not weighed in on this. I expect the major action is going to be building a strong record, based upon originalist style scholarship, that the independent state legislature theory, as currently understood, is contrary to the original understanding of the Constitution. There’s a strong case to be made, and it will be one of the first tests to see how serious Justice Barrett takes such historical arguments.