With the future of America’s congressional districts at stake, state legislatures and state courts will be the battlegrounds as the Supreme Court wrestles with its referee role. 

That is the upshot of the high court’s decision yesterday that refrained from tossing  electoral maps in North Carolina and Pennsylvania sanctioned by state courts. 

Another result: Electoral terrain that once looked forbidding for Democrats appears to be assuming a more promising political shape. 

The chief justice, John Roberts, along with Justices Stephen Breyer, Sonia Sotomayor, Elena Kagan, and Amy Coney Barrett comprised the majority, with Justice Brett Kavanaugh concurring but urging the court to take up the case in its normal course, rather than via an emergency appeal. 

By declining the invitation to overturn state court decisions, the 9 ensured that the 2022 midterm elections will transpire on terms more favorable to Democrats than they otherwise might have been. 

In dissent, Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch all signaled concern that the high court’s decision empowered judges who review laws at the expense of the legislatures tasked with making them. 

Justice Alito insisted “there must be some limit on the authority of state courts to countermand actions taken by state legislatures when they are prescribing rules for the conduct of federal elections.” 

This decision, which emerged from the court’s “shadow docket,” or cache of emergency appeals and summary decisions released without oral argument, augurs an argument that will decide how America votes. 

For that to happen, four justices will have to indicate abiding interest in a fuller consideration of the role of state courts in judging congressional districts. 

In both North Carolina and Pennsylvania, Democrats had successfully challenged districting plans drawn up by Republican legislatures, with courts receptive to claims that previous iterations of the maps violated provisions of their respective state constitutions.

In the Tar Heel State, courts rejected not one but two drafts of maps drafted by Republicans, with the state supreme court eventually retaining a nonpartisan committee to produce a final version. 

Instead of Republicans being favored in six out of 10 districts in North Carolina, those districts are now evenly divided between red and blue.

Meanwhile, in the Keystone State, Republicans argued that their maps would lead to nine Republicans and eight Democrats taking seats in Congress. 

The ones drawn by Pennsylvania’s courts would likely give the Democrats 10 representatives after November’s vote. 

The Supreme Court’s latest proclamation is another twist in what has become a pitched map-drawing battle ahead of the midterm elections. 

In New York, Democrats look set to lock in redistricting gains that have seen them matriculate to a potential 22-4 upper hand from a 19-8 advantage.

An Empire State judge has expressed hesitation about ordering a redrawn map so close to the time votes are being cast.

Zooming out, Democrats currently hold a 222-211 advantage in the House, with two seats vacant. While Republicans are projected to retake the lower chamber, shifting electoral cartography in just a few districts might be decisive to the outcome.     

After years of accusing Republicans of torpedoing democracy and stifling the voice of the people via partisan mapmaking, the shoe is suddenly on the other foot. 

Current projections have Democrats gaining 11 seats in the once-a-decade process, and Republicans forfeiting six. 

Once-a-decade redistricting means that the current Democratic offensive is also a fight for the future. Gains made today will likely mean seats held in the future.  

While the Constitution does not explicitly mention districts, it does mandate: “The House of Representatives shall be composed of Members chosen every second Year by the People of the several States.”

This language assigns the primary responsibility for electing members of Congress to state legislatures, pending compliance with state constitutions as evaluated by state courts. 

The Supreme Court held in Rucho v. Common Cause that evaluating individual districts is a political matter and “not law,” and thus beyond the ken of the Supreme Court’s jurisdiction. 

Chief Justice Roberts explained that “the Constitution supplies no objective measure for assessing whether a districting map treats a political party fairly.” 

Rucho, however, left open the possibility that state courts might have a more active role to play. They now appear to be seizing that opportunity.  

For his part, Justice Alito believes “we will have to resolve this question sooner or later, and the sooner we do so, the better.”