Bench Memos

Law & the Courts

Challenge in Supreme Court to Pennsylvania Supreme Court’s Election Map

The Elections Clause of the Constitution (Article I, section 4, clause 1) states that “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” (Emphasis added.)

Notwithstanding the Elections Clause, the Pennsylvania supreme court last Wednesday, by a vote of 4 to 3, ordered state election officials to implement a map for the state’s 2022 congressional elections that the Pennsylvania legislature had never adopted—a map, as it happens, backed by Democratic National Committee lawyer Marc Elias. What’s more, the court did so even though the legislature had not authorized the state judiciary to participate in the congressional redistricting process. The state supreme court further ordered state election officials to disregard the primary calendar that the legislature had enacted and to abide by a schedule of the court’s creation, a schedule that delays and compresses the time period in which candidates may circulate and file nomination petitions.


Plaintiffs challenging the state supreme court’s action have filed in the U.S. Supreme Court an application for injunctive relief (which they invite the Court to regard, in the alternative, as a statement of the Court’s appellate jurisdiction over the matter). The Pennsylvania redistricting saga, along with an accompanying application from North Carolina that challenges the North Carolina judiciary’s meddling in congressional redistricting decisions, presents an ideal opportunity for the justices to resolve the fundamental and recurring question of the authority that the Elections Clause vests in state legislatures.

Justice Alito has requested a response to the application by close of business on March 3.

Ed Whelan holds the Antonin Scalia Chair in Constitutional Studies at the Ethics and Public Policy Center and is a regular contributor to National Review’s Bench Memos blog.
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