In the past two weeks, state courts in Pennsylvania and North Carolina redrew the electoral maps so that citizens would have a fair opportunity to choose their politicians, and not the other way around. This had the effect of reversing a decade of gerrymandering which gave Republicans in those states a majority of federal and state representatives despite making up just half of the electorate.
Rebuffed by the lower federal courts and with the filing deadline right around the corner, Republicans have thrown a Hail Mary pass to the Supreme Court. Well, two passes, in fact, since legislators from both states have filed emergency petitions asking the Justices to wade in and toss out the maps based on the “independent state legislature” theory.
As described by election law expert Richard L. Hasen at Slate, the GOP has lately argued that Article I’s reference to the state legislature directing the “Manner” of elections and Article II, Section 4’s dictate that “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof” grant legislatures exclusive control of elections.
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In their telling, judges have no right to interpret state election law, much less impose fair maps. Team Trump also relied on this reasoning when it advocated sending swing state electoral votes back to legislatures to recast them for the incumbent in 2020 based on bogus claims of widespread vote fraud.
On Friday, the Republican Speaker of the North Carolina House of Representatives and the President Pro Tempore of the state Senate filed an emergency application for stay with Chief Justice Roberts seeking to have the state court’s maps declared illegal.
“If a redistricting process more violative of the U.S. Constitution exists, it is hard to imagine it,” they argue, citing a concurrence written by Justice Gorsuch and joined by Justice Kavanaugh which tossed out a Wisconsin state court’s decision on early voting on the ground that “state legislatures—not federal judges, not state judges, not state governors, not other state officials—bear primary responsibility for setting election rules.”
Yesterday Pennsylvania legislators followed suit, asking Justice Alito to block fair maps and a new filing deadline imposed by the court after Democratic Governor Tom Wolf and the Republican legislature failed to agree on a redistricting plan.
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The Elections Clause prohibits the defendants from implementing the Carter Plan because it has not been “prescribed” by “the Legislature” of Pennsylvania. The Supreme Court of Pennsylvania is not part of “the Legislature,” and the General Assembly has not delegated any of its map-drawing powers to the state judiciary or authorized the state courts to involve themselves in the redistricting process. The state supreme court cannot arrogate to itself powers that the Constitution specifically assigns to “the Legislature,” and it cannot step into the shoes of the legislature and impose a congressional map merely because the General Assembly and the governor have failed to reach agreement on a map to govern the 2022 elections.
Just to make that totally clear, some sort of way a state with almost 600,000 more registered Democrats than Republicans always winds up with a legislature that is 56 percent Republican. And those Republican legislators insist that the Constitution allows them to keep it that way forever without pesky state courts butting in to ensure that their maps comply with state law.
You don’t have to squint hard to see the chaos that the Supreme Court will unleash if it entertains these petitions. State legislatures will effectively become the only election law in the land, unrestrained by courts or state executives. Election procedures will be exactly what gerrymandered legislatures say they are, notwithstanding the will of the voters. Had this been the prevailing view in 2020, the legislatures in Georgia, Pennsylvania, Wisconsin, Arizona, and Michigan could simply have declared the electoral certifications signed by the secretaries of state a nullity and thrown the election to Donald Trump.
Not to put too fine a point on it, but that is insane. And yet, here we are, with a non-negligible chance that the highest court in the country will do just that.
North Carolina Republicans Ask SCOTUS To Decimate Voting Rights in Every State [Slate]
Toth v. Chapman [SCOTUS Docket]
Moore v. Harper [SCOTUS Docket]
Elizabeth Dye lives in Baltimore where she writes about law and politics.