Samotsvety Forecasting

1-Year Post-mortem Analysis

Prediction: Reject ISL and overturn NCSC ruling (81%).

Outcome: Reject ISL and uphold NCSC ruling.

SCOTUS’s decision in Moore v Harper is a great case to post-mortem, because it illustrates some potential pitfalls in base rate-driven forecasting. My errors here fall into three domains: base rate specificity, inside view adjustment, and cognitive bias.

It’s easy to look at a case like this and say, “19% chance isn’t 0% chance, we just got unlucky, this case just happened to be one of the few times we’re wrong.” But this is a very detrimental mindset for forecasting. It would mean no forecast could ever be wrong, and every wrong forecast is just “bad luck”. We shouldn’t overreact to cases like this, because we do expect them to happen. But it’s also critical to find what we should’ve done differently.

Base Rate Specificity

If you rely on high-level base rates, as I did here, you’ll get a very low probability for SCOTUS’s actual ruling. From the analysis, SCOTUS only upholds state court rulings in 24% of the cases it hears. Moreover, we end up near the same place using several other base rates.

For cases from the 2017-2021 terms (5 years) with 9 justices voting1: - % of judgments affirming the lower court in “controversial” cases (decided by 5-4 or 6-3 margin): 25% - % of judgments affirming the lower court in civil rights cases: 22% uphold - % of judgments affirming a liberal decision from a lower court: 17% - % of SCOTUS rulings leaning in a “liberal” direction: 41%

A simple average of the alternate base rate options gives a rate of 26%, only 2% higher than the base rate used in the original analysis. The highest base rate of 41% is still <50%. But the problem is that the base rates are too general.

Base rates can fail when a particular case has features that a) are rare among base rate set members, and b) have a strong causal relation to the outcome of interest. That was the case in Moore v. Harper, an overturn ruling would’ve been unusually disruptive and unusually difficult to define (see below). Ideally, I would’ve had a base rate based on disruptive/impractical rulings, but unfortunately those qualities are difficult to quantify. As a stop gap, I should’ve been more open to inside view adjustments, which I’ll dive into next.

Inside view adjustment

This analysis included a very lengthy inside view discussion, but it missed an important domain that determines SCOTUS rulings. Specifically, it focused on ideology and didn’t pay sufficient attention to practicality. I assumed that SCOTUS would simply figure out how to word a rule describing their ideological position. But the justices discussed the difficulty of defining a clear rule at great length in oral arguments, and ultimately refused to draw one at all. They ruled similarly in another recent case, Health and Hospital Corporation of Marion County v. Talevski, upholding old and contentious standards drawn by liberal judges (drawn in 5-4 liberal decisions even), apparently for lack of a better practicable alternative2. Practicality seems to be much more of a factor than I’d given it credit for, even in politically charged cases like Moore v Harper.

Cognitive bias

I feel I succumbed to a cognitive bias here as well, which is confidence inappropriately scaling up with volume of research done. When I dig super deep into a subject, I find it tempting to take a more confident/extreme view of that subject. The intuition is that doing more research must mean I have more useful knowledge, and therefore my forecast should be closer to correct (i.e. more extreme). But, as I’ve seen in multiple cases now, sometimes when you gather a large volume of knowledge about a subject, very little of it is actually useful in forecasting the result you care about. I believe that was the case here. I gained plenty of insights on the justices' views on ISL theory, but little on how they’d judge the NCSC’s specific conduct. The best assessment of SCOTUS’s viewpoint in hindsight is that the NCSC’s conduct was extreme, but is subject to an extreme standard of review, and that standard is very difficult to nail down. That means the inside view should’ve been uncertain (50/50) or skewed toward upholding the lower court. Adjustment from the 24% base rate should’ve been upward, not downwards.


This forecast could’ve been less wrong. Ideally, the base rate would’ve accounted for Moore v. Harper’s uncommon and causally relevant features, namely its potential for disruption and the difficulty of articulating a clear standard of review for the conduct in question. Short of collecting novel data on that front, inside view adjustments should’ve favored upholding the lower court based on the concerns about practicality and disruption.


1: Harold J. Spaeth, Lee Epstein, Andrew D. Martin, Jeffrey A. Segal, Theodore J. Ruger, and Sara C. Benesh. 2023 Supreme Court Database, Version 2023 Release 01. URL:

2: Unikowsky, A. (2023, June 24). Sometimes you just have to muddle through.

[Draft] Report on Moore v. Harper and the future of US democracy


The probabilities listed are contingent on SCOTUS issuing a ruling on this case. An updated numerical forecast on that happening, particularly in light of the NC Supreme Court’s decision to rehear Harper v Hall, may be forthcoming.

The author of this report, Greg Justice, is an excellent forecaster, not a lawyer. This post should not be interpreted as legal advice. This writeup is still in progress, and the author is looking for a good venue to publish it in.

You can subscribe to these posts here.


The Moore v. Harper case before SCOTUS asks to what degree state courts can interfere with state legislatures in the drawing of congressional district maps. Versions of the legal theory they’re being asked to rule on were invoked as part of the attempts to overthrow the 2020 election, leading to widespread media coverage of the case. The ruling here will have implications for myriad state-level efforts to curb partisan gerrymandering.

Below, we first discuss the Independent State Legislature theory and Moore v. Harper. We then offer a survey of how the justices have ruled in related cases, what some notable conservative sources have written, and what the justices said in oral arguments. Finally, we offer our own thoughts about some potential outcomes of this case and their consequences for the future.


What is the independent state legislature theory?

Independent State Legislature theory or doctrine (ISL) generally holds that state legislatures have unique power to determine the rules around elections. There are a range of views that fall under the term ISL, ranging from the idea that state courts' freedom to interpret legislation is more limited than it is with other laws, to the idea that state courts and other state bodies lack any authority on issues of federal election law altogether. However, “[t]hese possible corollaries of the doctrine are largely independent of each other, supported by somewhat different lines of reasoning and authority. Although these theories arise from the same constitutional principle, each may be assessed separately from the others; the doctrine need not be accepted or repudiated wholesale.”[^1]

The doctrine is rooted in a narrow reading of Article I Section 4 Clause 1 (the Elections Clause) of the Constitution, which states, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.”[^2] According to the Brennan Center, this interpretation is at odds with a more traditional reading:

The dispute hinges on how to understand the word “legislature.” The long-running understanding is that it refers to each state’s general lawmaking processes, including all the normal procedures and limitations. So if a state constitution subjects legislation to being blocked by a governor’s veto or citizen referendum, election laws can be blocked via the same means. And state courts must ensure that laws for federal elections, like all laws, comply with their state constitutions.

Proponents of the independent state legislature theory reject this traditional reading, insisting that these clauses give state legislatures exclusive and near-absolute power to regulate federal elections. The result? When it comes to federal elections, legislators would be free to violate the state constitution and state courts couldn’t stop them.

Extreme versions of the theory would block legislatures from delegating their authority to officials like governors, secretaries of state, or election commissioners, who currently play important roles in administering elections.3

The doctrine, which governs the actions of state courts, is of particular importance to partisan gerrymandering given SCOTUS’s prior ruling that partisan gerrymandering is beyond the reach of federal courts.4 Some extreme interpretations of ISL would deem state constitutional amendments imposing standards for redistricting, like those in Florida5 and Ohio,6 or amendments requiring redistricting to be done by an independent commission, as is done in states like Arizona7 and Michigan,8 as unenforceable by state courts. State legislatures in that scenario may be able to gerrymander with far more freedom than they currently have.9

What is Moore v. Harper about?

The sequence of key events leading to the current case is as follows:

While approximately one third of registered voters in North Carolina are unaffiliated with any party,10 North Carolina voters have split their votes roughly 50/50 between Democratic and Republican presidential candidates in the past several presidential elections.11 However, after North Carolina gained an additional House seat in the 2020 redistricting cycle, the Republican-led North Carolina state legislature adopted a heavily gerrymandered Congressional district map that would likely have resulted in 9 or 10 of the state’s 14 Congressional seats going to Republicans.12 That map, as well as two others for use in elections for the NC House and NC Senate, was set to be used in the 2022 midterm election. The North Carolina legislature previously passed a statute authorizing court review of its redistricting plans.13 Pursuant to that statute, a group of voters and non-profit organizations sued in a case called Harper v. Hall, arguing that the legislature’s partisan gerrymander violated the state constitution.

The NC trial court (lower court) upheld the maps, but the NC Supreme Court overturned that decision 4-3, ruling that the maps violated four clauses of the NC state constitution.14 The NC Supreme Court then blocked use of the maps and ordered new maps to be submitted that would meet specific criteria. The NC General Assembly duly submitted new maps, and the lower court approved the new NC House and NC Senate maps. However, the court did not approve the Congressional district map and issued an interim map for the 2022 election instead.15

In response, Timothy Moore, the Speaker of the NC House of Representatives, requested that SCOTUS review the actions of the NC Supreme Court, including both its ruling that new maps be submitted to the lower court and its requirement that a court-drawn map be used in the 2022 Congressional election. He also asked that, in the meantime, SCOTUS stay the NC courts' orders, which would mean that the NC legislature’s original gerrymandered maps would be used in the 2022 election.

SCOTUS agreed to hear the case but did not stay the lower courts' orders. The denial of a stay included two opinions, one from Kavanaugh concurring, and one from Alito joined by Thomas and Gorsuch dissenting.

What is the legal question posed in Moore v. Harper?

The exact question requested by Moore that SCOTUS agreed to hear is as follows:

Whether a State’s judicial branch may nullify the regulations governing the “Manner of holding Elections for Senators and Representatives … prescribed … by the Legislature thereof,” U.S. CONST. art. I, § 4, cl. 1, and replace them with regulations of the state courts' own devising, based on vague state constitutional provisions purportedly vesting the state judiciary with power to prescribe whatever rules it deems appropriate to ensure a “fair” or “free” election.16

What have conservative justices said prior to this case?

Conservative justices, including some currently on the bench, have voiced their opinions on similar issues in previous rulings and dissents. Their line has been that state legislatures bear primary, but not necessarily sole, responsibility for election law.

This was voiced most clearly in the conservative dissent in the 2015 case Arizona State Legislature v. Arizona Independent Redistricting Commission. That case decided whether an Arizona ballot measure could take redistricting authority from the state legislature and give it to an independent commission. In a 5-4 decision the majority ruled yes, while Roberts, joined by Scalia, Thomas, and Alito dissented. From their dissent:

In Ohio ex rel. Davis v. Hildebrant, 241 U. S. 565 (1916), the Ohio Legislature passed a congressional redistricting law. Under the Ohio Constitution, voters held a referendum on the law and rejected it. A supporter of the law sued on behalf of the State, contending that the referendum “was not and could not be a part of the legislative authority of the State and therefore could have no influence on … the law creating congressional districts” under the Elections Clause. Id., at 567. The Court. rejected an argument that Ohio’s use of the referendum violated a federal statute, and held that Congress had the power to pass that statute under the Elections Clause. Id., at 568-569. Hildebrant simply approved a State’s decision to employ a referendum in addition to redistricting by the Legislature. See 241 U. S., at 569. The result of the decision was to send the Ohio Legislature back to the drawing board to do the redistricting.

In Smiley, the Minnesota Legislature passed a law adopting new congressional districts, and the Governor exercised his veto power under the State Constitution. The Court nevertheless went on to hold that the Elections Clause did not prevent a State from applying the usual rules of its legislative process—including a gubernatorial veto—to election regulations prescribed by the legislature. 285 U. S., at 373. As in Hildebrant, the legislature was not displaced, nor was it redefined; it just had to start on a new redistricting plan.There is a critical difference between allowing a State to supplement the legislature’s role in the legislative process and permitting the State to supplant the legislature altogether. See Salazar, 541 U. S., at 1095 (Rehnquist, C. J., dissenting from denial of certiorari) (“to be consistent with Article I, § 4, there must be some limit on the State’s ability to define lawmaking by excluding the legislature itself”). Nothing in Hildebrant, Smiley, or any other precedent supports the majority’s conclusion that imposing some constraints on the legislature justifies deposing it entirely.

The constitutional text, structure, history, and precedent establish a straightforward rule: Under the Elections Clause, “the Legislature” is a representative body that, when it prescribes election regulations, may be required to do so within the ordinary lawmaking process, but may not be cut out of that process. Put simply, the state legislature need not be exclusive in congressional districting, but neither may it be excluded. [emphasis added]

That statement is a rejection of the extreme forms of ISL. A similarly restrained take has been echoed by the other conservative judges, who take issue with the extent of state courts' power, but apparently not with the idea that they have a role to play.

None of these statements suggest that state courts lack jurisdiction over state election law cases, as more extreme versions of ISL would contend. They say that, just as stated in the Arizona dissent, that state courts do indeed have authority on election law cases, but that authority has limits.

Also notable is the majority opinion in Rucho v. Common Cause, written by Roberts and joined by Alito/Thomas/Gorsuch/Kavanaugh. The most notable section is the following:

The conclusion that partisan gerrymandering claims are not justiciable neither condones excessive partisan gerrymandering nor condemns complaints about districting to echo into a void. Numerous States are actively addressing the issue through state constitutional amendments and legislation placing power to draw electoral districts in the hands of independent commissions, mandating particular districting criteria for their mapmakers, or prohibiting drawing district lines for partisan advantage. The Framers also gave Congress the power to do something about partisan gerrymandering in the Elections Clause. That avenue for reform established by the Framers, and used by Congress in the past, remains open.18

The language used in that section seems to condone some restraints on legislatures coming from state constitutions and independent commissions. However, such measures aren’t the question they were ruling on in that case, and they’re not explicitly saying such measures are always legal. Alito, Thomas, and Kavanaugh have shown interest in limiting the power of state courts despite joining that opinion. However, at the very least, it’s another rejection of the extreme forms of ISL.

While conservative justices have written against radical forms of ISL, they do see an issue with the NCSC’s actions, and similar actions by other courts. As Alito (joined by Thomas and Gorsuch) argued in an opinion related to Republican Party of Pennsylvania v. Boockvar, “The provisions of the Federal Constitution conferring on state legislatures, not state courts, the authority to make rules governing federal elections would be meaningless if a state court could override the rules adopted by the state legislature simply by claiming that a state constitutional provision gave the courts authority to make whatever rules it thought appropriate for the conduct of a fair election.”19 A conservative ruling would likely seek to address that issue, defining how far the authority of state courts can reach in federal election law cases.

Lastly, there is some notable precedent, or lack thereof, with regard to rulings seeking to overturn the results of elections. There were lawsuits to overturn the 2020 election and SCOTUS refused to hear them. From the Economist:

Late last year, when Donald Trump and his allies were litigating his electoral loss, the Supreme Court shot down two last-ditch lawsuits with deep procedural flaws. On December 8th a one-sentence order put a halt to a Pennsylvania state representative’s bid to stop his state from certifying Joe Biden’s win. And three days later, another terse order snuffed out Texas’s attempt to suspend Mr Biden’s victories in Georgia, Michigan, Pennsylvania and Wisconsin. For Stephen Vladeck, a law professor at the University of Texas and Supreme Court litigator, some of the court’s most important decisions of the term “may have been its decisions not to get involved”.[^20] [emphasis added]

The orders for the Pennsylvania20 and Texas21 are linked in the footnotes, and they’re as terse as the Economist describes them. The Pennsylvania order is literally one sentence from all of the justices, and the Texas order had a dissent only from Alito and Thomas, and it was only on procedural issues; neither of them would have granted the request for relief either.

Some of the worries around this case are that it’s part of a plot to overthrow a future election. However, it’s worth noting that SCOTUS has already been asked to do that, and they’ve refused the cases with almost no written dissent.

What have conservative groups written?

A good place to start is the petitioner, Timothy Moore. What he’s not asking for, at least not openly, is a more expansive version of ISL:

Moore said he did not agree with broader versions of the argument that could be used to question the certification of election results. He also said he believed that the governor had the power to veto elections legislation, a procedure cast into doubt by at least one interpretation of the independent state legislature theory. “I would not go that far,” he said.

Notably, this case has drawn wide opposition, including from many conservative sources.22 The case includes amicus briefs from the Republican National Committee (RNC) and the National Republican Redistricting Trust (NRRT), among others.

The RNC made a similar argument to the one petitioners made in oral arguments. The gist of their brief is emphasizing that state legislatures are bound by Congress and federal law, which they use to rebut the idea that overturning the NCSC would grant unchecked power to state legislatures. They also outline a role for state courts enforcing state statutes and constitutions, but not substantively deviating from those laws or creating their own:

There remains a limited role for state courts, one far more circumscribed than the antics conducted by the North Carolina Supreme Court. State courts may, for example, ensure that their state legislature’s regulations follow federal law. That said, they never may claim a “blank check to rewrite state election laws for federal elections.” Democratic Nat'l Comm., 141 S. Ct. at 34 n.1 (2020) (Kavanaugh, J., concurring in denial of application to vacate stay). The plain text of the Elections Clause means “‘the clearly expressed intent of the legislature must prevail’ and that a state court may not depart from the state election code enacted by the legislature.” Id. (citing Gore, 531 U. S. at 120 (Rehnquist, C. J., concurring); see Palm Beach Cnty. Canvassing Bd., 531 U.S. at 76-78 (per curiam); McPherson, 146 U.S. at 25).

It remains true that “state statutes and state constitutions can provide standards and guidance for state courts to apply.” Rucho, 139 S. Ct. at 2507. It is also true, however, that state courts are limited to enforcing the express policy prescriptions of the legislature and procedural limitations—such as the gubernatorial veto or initiative process—on the legislature’s lawmaking powers.; See Smiley v. Holm, 285 U.S. 355, 369 (1932); Gore, 531 U.S. at 120 (Rehnquist, C.J., concurring); Ariz. State Legislature, 576 U.S. at 824.8 None of this Court’s precedents support the “conclusion that imposing some constraints on the legislature justifies deposing it entirely,” in favor of giving a state’s lawmaking power to its judiciary. Ariz. State Legislature, 576 U.S. at 841 (Roberts, C.J., dissenting); see also Republican Party v. Boockvar, 141 S. Ct. 1, 2 (2020) (statement of Alito, J., joined by Thomas and Gorsuch, JJ.) (when a state court replaces the policy prescriptions of the legislature with its own, “there is a strong likelihood that the State Supreme Court decision violates the Federal Constitution”).23

The NRRT’s brief on the other hand focuses on outlining their stance on when state courts can and cannot check the actions of the legislature. The first is through “express authorizations'‘ where a clear standard is outlined in state law. As they note, ”Such express authorizations as exist in New York and as the Rucho Court identified in Missouri, Iowa, and Delaware law codify clear anti-partisan gerrymandering standards that state courts are empowered to enforce. But it does not logically follow from the Court’s recognition that “[p]rovisions in state statutes and state constitutions can provide standards and guidance for state courts to apply” in redistricting cases that all state court attempts to review a state legislature’s redistricting authority are automatically constitutionally permissible. Rucho, 139 S. Ct., at 2507.“ (emphasis added) 24

So neither conservative group is asking for state courts to be cut out of the lawmaking process. Instead, they’re asking for specific standards around when it’s acceptable for a state court to intervene and/or what remedies they’re allowed to issue.

What was said in oral arguments?

Here we’ll break down each judge’s questions from oral arguments. Firstly though, some background on what different cases refer to, very broadly:












The following probabilities are contingent on SCOTUS issuing a ruling on this case. An updated numerical forecast on that happening, particularly in light of the NC Supreme Court’s decision to rehear Harper v Hall, may be forthcoming.

There are a wide variety of possible rulings that SCOTUS could issue, including restrictions on the sources and methods state courts can use to interpret state laws, restrictions on when state courts can intervene, and restrictions on actions that state courts can take. This makes it difficult to define narrow questions on the outcome of the case that can be numerically forecasted. Instead, we seek to bucket some of the likely rulings and forecast those buckets.

Will the court rule that the North Carolina courts erred in striking down and/or replacing the North Carolina district maps?

Forecast: 81%

Firstly as a base rate, we can look at how often SCOTUS overturns the lower court in cases that they hear. For cases coming from state courts, they overturn the state court 76% of the time.30 Intuitively this makes sense, a major reason to decide to hear a case is to correct an incorrect judgment. Many cases where SCOTUS agrees with the lower court simply aren’t heard.

Source: Ballotpedia

As for an opinion, we can look to oral arguments, and to the judges individually. In oral arguments overall, there were two main takeaways. Firstly, nobody seemed impressed by the petitioner’s argument, and the moderate conservatives in Roberts/Barrett/Kavanaugh seemed quite skeptical. Secondly, the respondents endorsed the idea that SCOTUS has some role to play in reviewing state court interpretations of their constitutions for redistricting cases, though under a very deferential standard. The idea of setting that standard seemed to resonate with Roberts/Barrett/Kavanaugh, as well as Kagan and others. Everyone agreed it should be a high standard, but exactly how high was an area of ambiguity and disagreement. Kagan was worried about a rule not being deferential enough to state courts, Alito worried about one deferring too much.

The main ambiguity seems to be where the standard of review for state court decisions will fall, and on which side of it the NCSC decision will end up.

For the individual judges:

With three near-certain votes in Alito/Thomas/Gorsuch, two of Barrett/Kavanaugh/Roberts is needed to form a majority. Importantly, those two or three votes don’t need to join the other three conservatives' opinion, the majority opinion could be a moderate ruling that Barrett/Kavanaugh/Roberts author, with a more extreme but non-controlling concurring opinion from the other three. We assume that rulings are independent, so our probability for a ruling against the NCSC is 81%, very close to the base rate for state court cases before SCOTUS.

Concerns for the Future

If SCOTUS Upholds the NC Supreme Court’s Actions: Election legitimacy

One of the most concerning futures for US politics is if large numbers of reasonable people don’t feel their elections are fair. One conservative argument in this case is that if the NCSC’s actions stand, blatantly partisan rulings from other courts in aggregate may jeopardize that trust.

The argument against what the NCSC did (Elections Clause aside) is that they’re reading a ban on partisan gerrymandering from extremely vague clauses, arguably against their precedent, and they pretty openly admit a policy motive in their own opinion. The decision was 4-3 with four Democrat judges in favor, and three Republican judges against it. Seeing the ruling as partisan is reasonable, even if one agrees with the outcome.

For North Carolinians specifically, this opinion probably won’t jeopardize trust in elections, mainly because gerrymandering is pretty universally reviled.36 But the danger may come from differences across states. “All elections shall be free” and similar clauses can be read very differently by different judges. One bad outcome would be D courts letting D legislatures gerrymander freely and send as many Democrats to Congress as possible, but D courts blocking R legislatures from gerrymandering and forcing them to send more Democrats, or vice versa. Alternatively, an R court in a D state could read vague election-related statutes to support voter ID requirements or similar policies, which might otherwise be against the will of voters.

This has always been a possibility in a federalist system, but in an increasingly polarized political environment with many states electing judges,37 it may be more likely to occur without SCOTUS intervention. Partisan gamesmanship in election law is unfortunately to be expected by partisan legislatures. But courts are intended to be a neutral third party, with decisions bound by constitutions and precedent, not the political opinions of justices. Some subjectivity is inevitable, but naked partisanship deciding election results or the balance of power in Congress will likely degrade respect for the courts as a (at least somewhat) neutral and nonpolitical body.

If SCOTUS allows for federal court review of state court decisions: Gerrymandering

The most immediate effect of such a ruling would most likely be to enable partisan gerrymandering in more states. At least 17 states had state court lawsuits either challenging their 2020 federal maps under their respective state constitutions or asking the state court to resolve a political impasse in map drawing,38 all of which may be affected depending on the ruling and/or subject to appeal in federal court. 21% of districts in the 2022 midterms were eventually drawn by state courts.39 Given the discussion in oral arguments, a SCOTUS ruling would most likely seek to empower state legislators to draw maps, and in practice they draw fewer competitive districts.40

Gerrymandering is obviously a bad practice, but there are mitigating factors here. Gerrymandering is bad in two ways: it promotes disproportionate representation (i.e 10-4 Republican reps in a 50/50 state like NC), and it enables representatives to choose their constituents to entrench themselves and ensure reelection. Since this case is for federal elections and maps are drawn by state reps, the entrenchment issue is less problematic. Elections for state and federal seats use different maps; maps drawn by the NC state representatives gerrymandering their own legislative districts will still be illegal and don’t implicate the Elections Clause.

That leaves the issue of disproportionate representation, in this case Republicans comprising 50% of votes but getting 70% of seats (absent court intervention). For any individual state this is bad, but gerrymandering is used by both parties. The effect in the 2022 midterms appeared to be a bump of only +4 to Republicans, though that did end up mattering a lot in this particular cycle.41 Timothy Moore appears to recognize his argument as a double-edged sword, saying “a wise person recognizes that an argument or rule that benefits one’s political side of the aisle today is something that can hurt their side of the aisle tomorrow.”42

Any ruling: Implications for how free and fair elections are ensured

Opposition to gerrymandering is a point of unity among Americans, and it demonstrates our widely held belief in fair elections. The cynical view presented by Gorsuch and Thomas is that political views on gerrymandering “[depend] on whose ox is being gored at what particular time.” That may not be entirely wrong. But many people have voted to restrict their own party’s ability to gerrymander, which is remarkable.

It was put most aptly by Mr. Verrilli in oral arguments:

If I could, there’s just one last point I would like to make about whose ox is being gored here, which I think is quite important.

Actually, there’s a great deal of sentiment in this country about the problems with extreme partisan gerrymandering and this Court’s opinion in Rucho acknowledged it. And states have actually responded in nonpartisan ways. I can think of four states, New York, Florida, California and Ohio, all of which are in the control of one political party where presumably the incentives would have been lined up to maximize partisan advantage through the redistricting process, but in all four of those states they amended their constitutions through the work of the people to restrict partisan gerrymandering and those provisions have been enforced. I mean, the provision was enforced in New York, of course, just earlier this year.

And so I do think it is more than whose ox is being gored. This is a really important issue in this country.43

Courts and legislatures are subject to different norms in different states, but they’re ultimately both made of people. Favoring one or the other isn’t inherently good or bad, and there are concerns with rulings going either way. An evaluation of the eventual ruling in this case shouldn’t focus too heavily on which side was favored, but should rather focus on whether the balance of power it leads to will favor freer and fairer elections in the future.


This post was written by Greg Justice, in collaboration with @belikewater. Big thanks to Misha Yagudin for setting up the collaboration that led to this paper, for connecting me with outside experts, and for his consistent support, input, and encouragement throughout the months-long writing process, to @belikewater for leading the original discussions of the case and helping to develop the main arguments, to Nuño Sempere for his feedback and editing assistance, to Jared Leibowich and other Samotsvety forecasters for contributing their thoughts and forecasts, and to Christoph Winter, Aaron Hamlin, and Richard Winger for their comments and suggestions.


  11. ,
  26. Rucho focused on partisan gerrymandering lacking a justiciable standard for courts to apply. The context Roberts emphasized in oral arguments was “how unmanageable and indeterminate various proposals were.” He seems to be implying that constitutions providing “standards and guidance” meant that constitutions could provide the clear justiciable standard that partisan gerrymandering lacked. In that context, “all elections shall be free” in his view would not address the problem, and thus would not be endorsed by that opinion.
  27. He’s responding here to the idea that vague state constitutional clauses are categorically unenforceable.
  28. Baker v. Carr was a SCOTUS case from 1962. By 1961, Tennessee had failed to redistrict for 60 years, resulting in districts with vastly different populations, diluting some citizens' votes. SCOTUS ruled that vote dilution from such malapportionment violates the 14th amendment Equal Protection Clause. Baker v. Carr ruled that a state statute, Tennessee’s 1901 map being used in 1961, violates federal law. It didn’t appear to “second-guess state court interpretations of their own constitution” as Justice Thomas seems to suggest. So to me it’s not entirely clear what parallel he’s trying to draw.
  29. This federal statute determines what happens when reapportionment occurs but a state fails to draw new districts, especially if they gain or lose seats and their old maps have the wrong number of districts.
  30. Ballotpedia: SCOTUS Case reversal rates