Even as the Supreme Court mulls decisions on gun rights, abortion, and affirmative action that hold the potential to reshape the constitutional landscape, a new front in America’s running legal drama is set to open: Who holds the ultimate authority to set election rules — state legislatures or the courts that review their decisions?  

The occasion for this reckoning is the battle over state congressional districts. The constitutional clause at stake reads, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.”

With their characteristic commitment to a blended federalism, the Founders charged the states with crafting the particulars of how federal office holders would be elected. The responsibility for this work is assigned to the voters and their representatives, subject to Congress’s power to “make or alter such Regulations.”    

The case seeking the high court’s review, Moore v. Harper, asks “whether a State’s judicial branch may nullify the regulations” governing the “Times, Places and Manner” of electing federal officeholders. It cuts to a fundamental question: Do courts, via judicial review, have a role in steering how elections are managed, or is that power vested solely in state legislatures?

The question was provoked by a gerrymander kerfuffle in the Tar Heel State, with the state supreme court rejecting congressional maps generated by the legislature as tainted by aggressive gerrymandering. The state supreme court assigned a special master to devise a bespoke gerrymander that passed the court’s muster.

After the North Carolina supreme court refrained from swatting back the lower court’s replacement of the legislature’s map with the one it commissioned, the speaker of the North Carolina House of Representatives turned to the United States Supreme Court.

In refusing to bow to the legislature, the North Carolina state supreme court issued a sweeping defense of judicial authority, noting that sidelining courts would be “repugnant to the sovereignty of states, the authority of state constitutions and the independence of state courts, and would produce absurd and dangerous consequences.”

North Carolina is but one battleground among many. This year has witnessed a proliferation of confrontations between state courts and legislatures over the maps that will dictate electoral topography for primaries this spring and summer and general elections in the fall. 

In New York, the highest court ruled that the Democratic-controlled legislature violated a state constitutional amendment against excessively partisan gerrymandering and threw out its map. A new one had to be drawn in accordance with its directives.  

The high court is no stranger to this friction between state legislatures and courts. A blizzard of litigation over Covid-induced changes in election procedures resulted in the court’s conservative wing viewing state legislatures as the exclusive locus of authority on election matters, with Chief Justice Roberts siding with the court’s liberals in an openness to a role for courts.  

The opposing view was articulated by Justice Neil Gorsuch in Democratic National Committee v. Wisconsin State Legislature: “The Constitution provides that state legislatures — not federal judges, not state judges,  not state governors, not other state officials — bear primary responsibility for setting election rules.”

In Rucho v. Common Cause, the Supreme Court held that “partisan gerrymandering claims present political questions beyond the reach of the federal courts. Federal judges have no license to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution, and no legal standards to limit and direct their decisions.”

By stepping aside as a decider on gerrymandering claims, the Nine position themselves as arbiters of who should be the ones to make those determinations. Four justices will have to signal interest in Moore v. Harper for it to be added to the docket.

That seems likely, as regarding an earlier, emergency iteration of the North Carolina impasse, three justices — Samuel Alito, Neil Gorsuch, and Clarence Thomas — agreed that “this case presents an exceptionally important and recurring question of constitutional law, namely, the extent of a state court’s authority to reject rules adopted by a state legislature for use in conducting federal elections.”

A fourth, Justice Brett Kavanaugh, signaled that he would support such consideration when the issue arrived in due course rather than via the court’s “shadow docket.”