But a change in the philosophy of election law at the Supreme Court, combined with a new aggressiveness among Republicans who drew the maps, has upended that model for the November election. This time, all four states are using the rejected maps, and questions about their legality for future elections will go to court later. The immediate result, election experts say, is that Republicans will almost certainly win more seats in the midterm elections at a time when Democrats are already struggling to hold onto their outright majority. David Wasserman, who tracks congressional redistricting for the Cook Political Report, said using rejected maps in the four states, which make up nearly 10 percent of the House seats, is likely to give Republicans five to seven seats. Parliaments that they would otherwise have not won. Some election law scholars say they are concerned about the long-term consequences. “We’re seeing a revolution in the willingness of courts to allow elections to be held under illegal or unconstitutional rules,” Richard L. Hasen, a professor at the UCLA School of Law and director of the Securing Democracy Program, said in an interview. . “And that creates a situation where states get a free illegal election before they have to change their rules.” Behind much of the change is the Supreme Court’s embrace of an informal legal doctrine that states judges should not order changes to election procedures too close to an actual election. In a 2006 case, Purcell v. Gonzalez, the court refused to block an Arizona voter ID law from going into effect days before an election because it could “lead to voter confusion and a consequent incentive to stay away from the polls”. The Purcell principle, as it is called, offers almost no guidance beyond this. But the Supreme Court has expanded its scope significantly this decade, mostly through rulings on petitions seeking extraordinary relief, such as staying lower court decisions, in which the justices’ reasoning is often cryptic or even inexplicable. Conservatives say the Supreme Court’s reluctance to interfere in election preparations is common sense. “It creates all kinds of logistical problems. The candidates don’t know where they’re running,” said Michael A. Carvin, a lawyer at Jones Day who has handled redistricting cases for Republican clients in several states and helped lead the legal team supporting George W. Bush in the presidential contest. of 2000. If the original map is retained later, he said, going back to it would be a “triple disruption to the system.”

Major Supreme Court Decisions This Term

Card 1 of 7 Important tenure. The US Supreme Court handed down many important decisions during his last term, including rulings on abortion, guns and religion. Here’s a look at some of the key cases: School prayer. In Kennedy v. Separation of Church and State. In Carson v. Makin, the court ruled that a Maine program exempting religious schools from a state curriculum violated the free exercise of religion. Critics argue, however, that the court is essentially saying that a smooth election is more important than a fair one. And they note that the long-standing guidance in redistricting cases — since the court’s historic one-person, one-vote decision in 1964 — is that using an illegal map in an election should be “the unusual case.” The Purcell doctrine does not always work to the advantage of Republicans. In March, the court cited the upcoming primary election by refusing to block a North Carolina Supreme Court decision that overturned a Republican challenger to that state’s congressional map. But scholars say such decisions are the exception. “It just so happens that unexplained rules in election cases have a remarkable tendency to save Republicans and hurt Democrats,” said Steven I. Vladeck, a law professor at the University of Texas who is working on the subject in a forthcoming book, “The Shadow Docket”. “ “It would be one thing if the court gave us a compelling or even plausible explanation,” he added. “But the granting of residence these days is often done without any explanation.” The prime example came in January in Alabama, where a three-judge federal panel said the state legislature likely violated the Voting Rights Act by reducing the power of black voters in the state’s new seven-seat map. The justices ordered the Legislature to draw a new map exactly four months before the May primaries — a time frame that, not long ago, another Supreme Court would have considered generous. But the Supreme Court issued an emergency stay blocking the order two weeks later, restoring the rejected charter for that election. Judge Brett Kavanaugh called the Purcell principle “a foundational tenet of election law: When an election looms, the rules of the road must be clear and settled.” Dissenting, Justice Elena Kagan responded, “Alabama is not entitled to continue to infringe on the voting rights of Black Alabamians simply because the court’s order was issued in the first month of an election year.” A month later, a federal judge in Georgia quoted Mr. Cavanaugh in deciding not to order a new congressional map for that state — this time three months before the primary — even though he said the legislature’s map of the State, like Alabama’s, probably violated the Voting Rights Act. And in June, the Supreme Court blocked a lower court ruling on a new congressional map in Louisiana on the same grounds. The judges did not explain their reasoning. Allowing elections using maps rejected by lower courts has been extremely rare over the past half century. The major cases occurred after the Supreme Court’s one-person, one-vote decision in 1964 that forced the redrawing of political maps nationwide. Politicians have taken note of the change. In Georgia, the Republican governor, Brian P. Kemp, waited 40 days after the legislature approved a congressional charter before signing it into law, leaving little time for the next legal battle. “Relevant actors are well aware of both Purcell and the court’s inconsistent application of it,” Professor Vladeck said. “So there’s a lot of upside and very little downside, to try to manipulate the conditions as much as possible.” Slow-walking redistricting issues are not limited to federal courts. In Ohio, both state and congressional elections this year are being run on maps that the state Supreme Court has ruled are unconstitutional partisan gerrymanders. The GOP-led Ohio Redistricting Commission, which drew the rejected maps, was threatened with contempt for petty conflict in producing maps of state legislative districts. He waited nearly seven weeks this spring for a second congressional map to be created after the state Supreme Court rejected the first. A three-judge federal panel later imposed the state’s redistricting commission legislative maps this spring, citing looming election deadlines. The state Supreme Court again struck down the second congressional map as partisan gerrymandering — but in July, after a lengthy trial and months after the map was used in the state’s May primary. “What happened in Ohio is a particularly egregious violation of the rule of law, purely for partisan advantage and contrary to what the state’s voters wanted with redistricting reform,” said Ned Foley, an Ohio University law professor and leading expert in electoral law. “It’s a clear contempt for democracy and a warning sign to the rest of the nation about how ugly and dangerous this kind of power grab can be.” Critics say they agree that practical issues matter when an election is looming. But the Supreme Court “gives almost no weight to the democratic harms caused by illegal district maps, while overestimating the administrative hassle of redistricting,” said Nicholas Stephanopoulos, an election law scholar at Harvard University. There is, however, another possible explanation for allowing the use of the rejected maps in November. Some election law experts speculate that the court intends to overturn lower court rulings striking down the Alabama and Louisiana maps after a landmark election case is heard in October. The Voting Rights Act clause invoked in these cases, known as Section Two, is primarily used to pursue racial bias on political maps. Mr. Carvin, the lawyer for Jones Day, said he fully expected the court to target that term. “The reality on the ground has changed dramatically” since the law was passed, he said, citing the election of politicians like former President Barack Obama with broad support among white voters. “The Pavlovian requirement that states with a history of racial discrimination must automatically maximize the number of minority-majority districts is no longer law.” Critics of the court say it is largely the law, as federal judges in Alabama, Georgia and Louisiana have said so this year. And that’s why maps found to be infringing had to be replaced, Professor Stephanopoulos said. But he also said he believed Mr Carvin’s prediction was probably correct. .