This article is published by Jost on Justice. Here is an excerpt:

When the Supreme Court closed federal courthouse doors to partisan gerrymandering cases three years ago, Chief Justice Roberts stressed in Rucho v. Common Cause (2019) that states still had the authority to devise remedies for politically motivated districting plans. Now, however, Republicans in two states, North Carolina and Pennsylvania, are asking the Court to go back on its word by vesting state legislatures with unreviewable authority to enact election laws and procedures immune from judicial review based on a preposterous interpretation of the Constitution’s Elections Clause.

Republicans in those two states filed emergency applications before the Supreme Court in late February asking the justices to block redistricting plans ordered by state courts that are somewhat more favorable to Democrats than the gerrymandered plans enacted by GOP-controlled legislatures. The emergency applications – Toth v. Campbell, 21A457, in the Pennsylvania case, and Moore v. Harper, 21A455, in the North Carolina case – do not focus on the specifics of the court-ordered redistricting plans, but instead contend that courts have no authority whatsoever to override legislative enactments regarding voting and election procedures.

The Republicans have fashioned an argument all but unprecedented in two centuries of election-related litigation in the United States. They cite the Constitution’s Elections Clause [Art. I, sec. 1, cl. 4] as giving state legislatures all but exclusive authority over congressional elections. The clause reserves for Congress the right to alter state election laws, but as written in 1789 makes no mention of judicial review.

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