Until the 1960s, the Election Clause of the US Constitution wasn’t a hotbed of debate. Gerrymandering, i.e., lawmakers drawing congressional boundaries for partisan benefit, has been with America since before the Constitution was ratified. Now, it’s a serious bone of contention that has escalated into what some may describe as a Constitutional crisis largely created by past Supreme Court rulings. Recently, Hillary Clinton hysterically called a potential Supreme Court case one that could end democracy. In oral hearings last week, one justice said a challenge to the Election Clause was “Novel,” but is it?
The Constitution requires the federal government to enact a census every ten years. State legislative leaders propose new congressional district maps, opposition explodes, lawsuits are filed, and the courts’ force legislatures to start over. In some cases, the State Supreme Court drew new maps and overrode the legislature.
So, why is this important as a Constitutional or practical matter?
It comes down to this… can courts cherry-pick what they like in the Constitution or don’t like and thereby change the meaning of plain words?
On Wednesday, December 7, the Supreme Court heard oral arguments in Moore v. Harper. The case deals with the meaning of the Constitution, outlining the Framers’ structure for who creates congressional redistricting maps. Article 1, Section 4 states,
“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof…”
North Carolina lawmakers argue it’s unconstitutional for state courts to override their congressional maps, which comply with federal law, because opposition partisans don’t like them. They said the plain meaning of the US Constitution showed state legislatures, and legislatures alone are given the mandate to design the maps. From 1789 to 2021, the North Carolina Supreme Court never once recognized a ban on partisan redistricting in the state Constitution.
US Supreme Court Justice Elan Kagan called the state’s position a “novel challenge.” Yet, is it?
Not according to history. Constitutional law didn’t debate the issue throughout the 1800s and most of the 1900s. Most arguments the court settled dealt with fair apportionment of congressional seats or requiring states to redistrict seats after every census. After three decisions, Baker v. Carr in 1962, Wesberry v. Sanders (1964), and Reynolds v. Sims (1964), the high court created a political revolution, changing the practice of American politics. Still, the high court didn’t deal with gerrymandering.
Prior to the 1960s’ decisions, the Court only dealt with one significant election issue. In Colegrove v. Green (1946), the court declined to get into a redistricting debate, calling it a “political thicket.”
Yet, in Arizona State Legislature v. Arizona Independent Redistricting Commission (“AIRC”) (2015), the Supreme Court created another problem. It held that the word “legislature” meant something different than the word’s plain meaning. The 5-4 majority said the term didn’t refer to a state legislature whereby elected officials in both chambers of a state legislature debate, compromise, and vote on congressional districts.
Instead, the majority ruled the word meant “legislative process” authorized by a state’s constitution. Therefore, redistricting was a legislative act requiring a governor’s approval and subject to court review. The majority also held that the legislature could transfer its powers to the executive branch or independent commissions.
The plain words in the Constitution grant redistricting powers to the state legislature. It adds that Congress can enact a law or regulation at any time regarding redistricting if it doesn’t approve of their process. There is no other mechanism.
While the intentions behind those who detest gerrymandering and the courts may be well-intentioned, their views are wrong and contradict the text’s plain meaning. It uses the word “Legislature.” During ratification debates in 1787, “legislature” was used repeatedly as the Founding Fathers said they meant it to mean what it said — they were referring to an institutional legislature — a distinct multibody elected body composed of representatives.
AIRC ignored the meaning of the term and effectively rewrote the Elections Clause.
Moore v. Harper is one example of the past court’s consequential legacy.
Ironically, in 2019, the high court ruled in Rucho v. Common Cause that partisan gerrymandering didn’t violate the US Constitution. Since redistricting is a federal issue, can a state law or Supreme Court override the US Constitution? That’s the heart of the matter in the most recent case.
So, let’s again ask… Is Justice Kagan right that the plaintiffs’ idea is “novel?”
Hardly. The remedy to the solution is not the courts. There’s a process to deal with it, and it’s called amending the Constitution.
Whether or not gerrymandering is good or bad isn’t the issue. There was a reason the courts refrained from getting involved in the debate from the late 1770s through the 1950s. It’s a “political thicket.”
The question is, how will the current Supreme Court rule?
