Free and fair elections are the foundation of American democracy. That means they must protect equitable opportunities by political parties to compete in order to reflect the will of the people.
That historic principle could collapse if the U.S. Supreme Court grants absolute control over mapping congressional districts to state legislatures by preempting state courts from having the right of review to prevent excessive partisanship.
The independent state legislature theory as the be-all and end-all of elections came before the Supreme Court Wednesday in a dispute over North Carolina’s Legislature drawing congressional districts to favor Republicans.
Three of the Supreme Court’s conservative justices – Clarence Thomas, Samuel Alito and Neil Gorsuch – appeared to favor the theory or parts of it. They indicated the North Carolina Supreme Court had gone too far in rejecting the GOP-controlled legislature’s congressional maps and ordering a more equitable drawing of the state’s 14 congressional districts.
Liberal justices supported the North Carolina court’s decision. Justice Elena Kagan warned that no constitutional oversight by state courts in drawing congressional districts would cancel voter protections, including legislators possibly intruding in certification of election results – something former President Trump attempted after he lost the 2020 election..
North Carolina’s 2021 congressional redistricting is a case of unmitigated gerrymandering. The purpose: Keep the state’s dominant political party in power no matter changing demographics, populations or sense of fairness.
If permitted by the high court, it will perpetuate the nation’s polarization by making red states redder, blue states bluer and purple states subject to partisan rules of the dominant political party and not the will of the people.
North Carolina Republicans took the issue to the U.S. Supreme Court, claiming the federal Constitution’s Election Clause granted it authority over the state constitution or statutory law, a legal interpretation rebuffed before in federal courts.
The reasoning stems from the antiquated decision by the nation’s Founders to designate state legislatures, then comprised of a handful of white men, responsible for the public interest. That changed as the country – and the U.S. House — grew from 13 original states. But until ratification of the 17th amendment in 1913, U.S. senators were selected by state legislatures.
That restrictive form of governance eventually evolved into the rights of Black people, women and citizens 18 and older to vote in federal and state elections, living up to the Constitution’s introductory promise of government by “We the people” and not political partisans.
The Federal Constitution’s Election Clause states: “The times, places and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof.”
The language does not appear to give state legislatures exclusive authority over elections nor the right to explicitly disadvantage one political party over other in drawing congressional districts.
The Supreme Court did say in a 2019 case involving Common Cause that gerrymandering is more a political question than an issue for the federal courts. But the ruling also said state constitutions and state laws can prevent it.
The independent legislature theory also appear to conflict with the federal Voting Rights Act that bars legal barriers discouraging racial minorities from voting.
Redrawn congressional districts often lump minorities into urban districts or attach slices of urban districts onto white rural districts to keep white dominated districts safe from change instead of reflecting voter diversity.
Federal courts have shown reluctance to reject the authority of state constitutions and courts in election disputes.
In cases involving discredited 2020 election fraud, federal courts repeatedly refused to overturn decisions by state courts for lack of credible evidence. The Supreme Court declined to even consider a challenge by Texas to election results in Georgia, Pennsylvania, Michigan and Wisconsin.
The North Carolina independent legislature theory case cancels the authority of the state’s constitution and courts in elections. If the Supreme Court embraces the dubious idea, it could move other states to do likewise.
And that, sadly, would overturn Lincoln’s Gettysburg doctrine of American democracy as ”government of the people, by the people and for the people.”
Bill Ketter is CNHI’s senior vice president of news. Reach him at wketter@cnhi.com.