Inviting More Political Tinkering

Terry H. Schwadron

March 11, 2022

A pair of Supreme Court decisions this week keeping Republicans from overturning newly drawn congressional district maps in North Carolina and Pennsylvania amount to an invitation for further political roiling in federal, even presidential elections.

While attention was focused on the immediate effects of stopping legislative attempts to redraw maps in a highly partisan manner, the more lasting estimate is that this was a temporary dam against widespread mapping that apparently eventually will favor Republicans nationally.

The judicial opinions suggested that three or four conservative justices are all but asking for a bigger case to come their way at a time when the next election is not already looming. Justice Brett Kavanaugh held off joining them only because he said primaries and prospective November election campaign are already upon us.

That two Supreme Courts in the two states had overseen redistricting after overruling their legislatures was of little account to the conservative wing; they plainly called their state colleagues’ actions unconstitutional.

The North Carolina Supreme Court had struck down gerrymandered congressional maps drawn by the state’s Republican legislature. The Pennsylvania Supreme Court chose a congressional map for that state after its Republican legislature and Democratic governor deadlocked on what the state’s new map should look like.

In both cases, the appeal to the U.S. Supreme Court came from Republican-majority legislatures based on the claim that enjoy state legislatures have the power to draw maps.

In fairness, both Republican and Democratic state legislatures are redrawing maps in this Census year in their partisan favor. The U.S. Supreme Court has ruled in multiple cases now to leave decisions to states and whittled away at the types of racial or partisan reasons to justify overturning those maps.

Weirdly, even as we’re considering these possibilities of state legislatures being beyond any oversight comes news that the Census numbers on which they were based were off by nearly 19 million people — an undercount of voters of color and an overcount of whites and Asian Americans.

Legal vs. Practical

As a legal issue, the focus in these cases was on the so-called “independent state legislature doctrine,” which claims that only state lawmakers are allowed to determine how states conduct federal elections. The Constitution says elections “shall be prescribed in each state by the legislature thereof.” So, a literal reading suggests that governors, for example, cannot veto bad election laws or that state courts cannot intervene even when racial or partisan issues arise or that new rules could be decided by referendum.

Several prior decisions have rejected such a literal reading, favoring a reading that states have “legislative power” in whatever form rather than insisting that the word “legislature” in the sentence means only state legislators. Once again we have “precedent” pitted against “strict interpretation” of what language of laws mean.

Those precedents established generally that state statutes and state constitutions can provide standards and guidance for state courts to apply in gerrymandering cases or to set up commissions to do the redrawing. And, along the way, there have been cases that appealed to courts for justice for perceived racial or other preferential gerrymandering based on partisanship.

The same justices who dissented this week — Justices Clarence Thomas, Samuel Alito, Neil Gorsuch — supported some version of those interpretations in the past. But those three, plus Kavanaugh, and conservative Justice Amy Coney Barrett could form a majority for a better-drawn case.

In Practice

As a practical non-legal issue, this is another chance to cement state powers as paramount and, given that there are more Republican-leaning states than Democratic-leaning states, to help Republican congressional election outcomes, and perhaps total control over who is named as a state’s electors for the Electoral College, affecting the presidency.

The theory of an “independent state doctrine” would have to be defined by any eventual majority of conservatives who decide to embrace it. In the recent cases brought about election fraud from the 2020 election, all of which were dismissed for lack of evidence or proper standing, this legal theory would suggest that state courts have no role in deciding on whatever the legislatures might do about creating alternative elector slates, for example.

How declaring one branch of government independent doesn’t mesh with the Constitutional idea of a balance of powers or with any notions of dealing practically with runaway partisanship, as we are seeing in some of the states where Donald Trump still refuses to acknowledge the literal 2020 vote.

Away from the academic discussion of Constitutional powers, It is difficult to separate court decisions about gerrymandering from the sustained campaign under way by Republican forces to limit voting eligibility, to insist on states’ rights to overturn adverse election results and generally to seek to win even at the cost of squashing democracy.




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