Much attention has been devoted recently to the increased calls for emergency relief from the Supreme Court in fast-paced ligation on the shadow docket. When the justices deny an emergency application, however, that is not necessarily the end of the road. The party that sought relief can still file a petition for certiorari seeking oral argument and full review on the merits of the larger issue, even though the court’s decision may come after the result the party had hoped to avoid has occurred. This week we highlight petitions asking the Supreme Court to consider, among other things, whether to weigh in on a major question for congressional elections that has repeatedly ricocheted around the shadow docket.
Pennsylvania lost a seat in the House of Representatives after the 2020 census, and so was required to draw a new map before the 2022 midterm elections. In January, its Republican-controlled state legislature chose a map that would have resulted in nine Democratic-leaning congressional districts and eight Republican-leaning districts. The state’s Democratic governor vetoed the map. After a flurry of litigation, the Pennsylvania Supreme Court in late February voted 4-3 to impose a different map that would favor Democrats in 10 of 17 congressional districts.
On March 7, the justices denied two emergency appeals on the shadow docket to revive the new congressional maps drawn by Republican state legislators in Pennsylvania as well as in North Carolina. Ten days later, Republican challengers in the North Carolina case filed a cert petition; that petition was up for consideration at the justices’ conference this week. Now, a former Republican congressional representative for Pennsylvania has filed a cert petition in his state’s case, urging the justices to grant the two petitions together for full merits review next term.
In Costello v. Carter, former Rep. Ryan Costello asks the court to answer two questions related to the drawing of states’ maps for congressional elections. The first question, also presented in the North Carolina case, regards the independent-state-legislature theory: whether the Constitution’s vesting of state legislatures with the authority to set the “Times, Places, and Manner” of elections in Article I, Section 4 precludes state courts from interfering with the maps or other rules those legislatures set for elections. Four justices (the number it takes to grant a cert petition) indicated that this question deserves the court’s full attention when the court declined to intervene in the North Carolina lawsuit.
Costello also asks the justices to consider whether a separate provision of federal elections law invalidates the Pennsylvania Supreme Court’s choosing of a new map in defiance of the legislature. In 2 U.S.C. § 2a(c), Congress laid out the procedures that govern a state’s elections after a census count and before formal redistricting takes place. The statute says that “if there is a decrease in the number of Representatives and the number of districts in such State exceeds such decreased number of Representatives, they shall be elected from the State at large.” Costello argues that, because Pennsylvania’s 18 districts “exceed[ed]” the state’s 17 House seats remaining after the 2020 census, the state court’s map violated the instruction from Congress that the state’s next congressional election be at-large until it “is redistricted in the manner provided by the law thereof after any apportionment.”