Horowitz: Supreme Court voids state legislative authority over redistricting

After Justice Kavanaugh joined with the left to unleash a federal judicial jihad upon Southern state legislative congressional maps, Kavanaugh and Barrett joined the other liberals this week in opening the floodgates of state judiciaries to tamper with legislative authority over election law. The Tuesday opinion in Moore v. Harper will further accelerate the trend of resolving election law and election map disputes based on year-to-year conflicting court decisions rather than by the popularly elected legislatures.

Despite the Supreme Court ruling in Rucho v. Common Cause that deems political gerrymandering cases as non-justiciable in the federal courts, the North Carolina Supreme Court still struck down the legislative map of the GOP-controlled legislature as a partisan gerrymander. On the surface, involving state courts in questions of election maps is not as bad because, unlike federal courts, at least state judges stand for election or retention ballot in most states. However, there is that pesky thing called the Constitution, which vests plenary authority over election law in the hands of the state legislatures, not the state courts or any other branch of government.

In Moore v. Harper, NC Republicans argued the “independent state legislature theory” – that state courts should not have jurisdiction to second-guess their election laws and maps. This case was complicated by the fact that during the course of litigation, Republicans won back control of the state supreme court, which summarily reversed the decision to throw out the maps. As such, Justices Thomas, Alito, and Gorsuch argued that the case should be moot. Consequently, they argued the high court lacked the opportunity to even rule on the question of the independent state legislature theory.

However, not only did the other six justices, in an opinion written by Roberts, rule that the case was still ripe, but they resolved the question in favor of state judicial interference, thereby weakening the plenary power of legislatures. Thomas, in a dissent joined by Gorsuch (Alito did not indicate how he would rule on the merits) made it clear that the ruling on the merits was very problematic.

When the Constutition says “legislature,” it means “legislature. The Constitution, in Art. I, §4, cl. 1, gives state legislatures the plenary power over the times, places, and manner of elections and provides no exception that enables governors or judges to override them and create a new system for elections – be it changes in maps, timing for early voting, or methods of mail-in balloting. “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof,” is the exact wording. Legislature always means the state legislature, distinct from other branches of state government.

This power is so clear that even if the legislature itself in one session gave the state courts authority to mess with election law (at least for federal elections), it cannot stop another session of the legislature from reclaiming that power because it is inherent. We find this doctrine from a parallel grant of plenary power to state legislatures regarding selection of presidential electors. Art. II, §1, cl. 2 of the Constitution stipulates that "Each State shall appoint, in such Manner as the Legislature thereof may direct" the electors to vote for president.

The fact that any subsequent state statute or court ruling would not supersede the legislature’s plenary power of selection of the electors seems clear from the language in the landmark Supreme Court case McPherson v. Blacker (1892) in upholding Michigan’s decision to divide the state’s electors by congressional district. In the unanimous opinion, the court cited an 1874 Senate report, which explained the power as follows:

The appointment of these electors is thus placed absolutely and wholly with the legislatures of the several states. They may be chosen by the legislature, or the legislature may provide that they shall be elected by the people of the state at large, or in districts, as are members of Congress, which was the case formerly in many states; and it is, no doubt, competent for the legislature to authorize the governor, or the supreme court of the state, or any other agent of its will, to appoint these electors. This power is conferred upon the legislatures of the states by the Constitution of the United States, and cannot be taken from them or modified by their state constitutions any more than can their power to elect senators of the United States. Whatever provisions may be made by statute, or by the state constitution, to choose electors by the people, there is no doubt of the right of the legislature to resume the power at any time, for it can neither be taken away nor abdicated. (Emphasis added.)

Accordingly, it’s clear that such a degree of plenary power cannot be abdicated by state statutes, constitutions, or court rulings. If this holds true for the legislature’s inherent authority to select electors, it almost certainly applies to the Election Clause in Art. I, which uses the same language of “legislature thereof” in granting authority over the manner of holding federal elections.

Unfortunately, these same justices (except for Jackson, who is new) already vitiated this power over the debacle related to election law in Pennsylvania during the 2020 elections. Over the dissent of Alito (joined by Thomas and Gorsuch), the court allowed the Pennsylvania state supreme court to unilaterally extend the deadline for counting ballots.

Turning to the case with the North Carolina maps, in classic John Roberts fashion, elevating precedent above all else, he ruled that the history of state judicial intervention is enough to void the plain meaning of the Constitution. However, offering no verifiable standard, he conceded that “state courts do not have free rein” to mess with legislative decisions on elections and must stay within “the bounds of ordinary judicial review.” Good luck deciding that standard!

As Thomas warned in his dissent, the smashing of the legislature’s plenary power, albeit with an ambiguous standard, is going to come full circle and bring every election map during every election before the federal courts once again to work out an arbitrary standard of judicial babysitting. That is the exact opposite of Roberts’ stated goal in the original North Carolina case of Rucho four years ago:

In the end, I fear that this framework will have the effect of investing potentially large swaths of state constitutional law with the character of a federal question not amenable to meaningful or principled adjudication by federal courts. In most cases, it seems likely that the “the bounds of ordinary judicial review” will be a forgiving standard in practice, and this federalization of state constitutions will serve mainly to swell federal-court dockets with state constitutional questions to be quickly resolved with generic statements of deference to the state courts. On the other hand, there are bound to be exceptions. They will arise haphazardly, in the midst of quickly evolving, politically charged controversies, and the winners of federal elections may be decided by a federal court’s expedited judgment that a state court exceeded “the bounds of ordinary judicial review” in construing the state constitution.

In other words, we will continue to have a repeat of the 2020 election.

The bottom line is that in a democratic republic, the most important decisions have to flow from the people’s representatives. The legislature is certainly politically motivated, but it also accords the most transparent process and is the branch of government closest to the people. What’s worse than the legislature passing specific election laws and maps is a judiciary with arbitrary power to quasi-veto maps and laws but in a very uneven way with no clear boundaries. And that is exactly how the left wants it.