The U.S. Supreme Court is considering whether state legislatures will have ultimate authority for drawing congressional district boundaries or whether those can be appealed to state courts.
In Moore v. Harper, the North Carolina Supreme Court threw out a redistricting map created by a Republican-controlled state legislature. The plan would have resulted in the GOP winning 10 or 11 of 14 congressional seats.
A court-imposed map resulted in the parties evenly splitting those seats in the 2022 elections.
North Carolina is hardly alone. State courts threw out a partisan map favoring Democrats in New York and other maps in Alaska, Maryland and Ohio.
Although the Supreme Court refused to block the state court-imposed North Carolina map for 2022, Justices Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Clarence Thomas have written opinions indicating sympathy for the idea that state legislatures, not state courts, may have the ultimate authority.
Section 1 of Article I of the Constitution assigns responsibility for regulating congressional elections to the state legislatures, subject to laws made by Congress. Now, North Carolina Republicans are asking the Supreme Court to effectively prohibit state courts from reviewing legislatures’ redistricting decisions.
Gerrymandering and racial fairness are difficult issues. People with good minds and goodwill can have different views about what is fair.
Voters have expressed their preferences by awarding Republicans control of more state legislatures and at least initial authority over most congressional and state legislative redistricting matters.
Democrats have turned to the courts to subvert these voter preferences, and litigation has reached epidemic proportions. As of February, the Brennan Center had cataloged 73 cases in 27 states challenging congressional and legislative redistricting maps.
Progressive media are ringing alarm bells that a finding in favor of North Carolina Republicans would permit GOP state lawmakers to steal presidential elections and upend democracy.
Article 4 and the Moore decision focus on the methods for electing members of Congress, not electors, in presidential elections. Once voters have spoken on Election Day, states cannot designate alternative slates. Federal statutes only empower state legislatures to designate a slate if an election fails owing to a natural disaster or similar catastrophe.
Moore could also upend independent commissions created to perform redistricting tasks, especially if those were established by referendum.
Leaving redistricting to state legislatures is no more political than constant litigation because the judicial branches of most state governments are hardly free of partisanship. And commissions are remote from and not accountable to voters.
Most states select their Supreme Court justices and judges through elections or gubernatorial appointments.
The North Carolina map drawn up by the Republican legislature was found acceptable by Wake County Superior Court. But the North Carolina Supreme Court that threw it out on appeal was selected in partisan elections, and the Democrats held a 4-3 majority.
Progressives argue that the independent state legislature theory is wholly outside our historical traditions. However, so was the outcome in Obergefell v. Hodge, which established a federal right to same-sex marriage.
Progressives have argued that the independent state legislature theory could lead to separate rules for congressional elections and state offices and confuse voters. Unfortunately, those folks must have done a web search for Section 4 and not read Article I in its entirety.
Section 2 states electors for members of Congress “shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.” The rules that apply to the state assembly must also apply to the House of Representatives.
They are quick to note that the framers famously distrusted state lawmakers. Hence the review of state courts is necessary. But the framers handled that in Section 4 by authorizing Congress to check the power of state legislatures.
That’s the rub.
Writing a law to combat partisan gerrymandering and ensure adequate minority representation and reasonably compact districts requires weighing competing objectives and judgments that are not easily reducible to rules. But for a national legislature, a common set of guiding principles should apply across the states with considerable deference to elected legislatures.
The Supreme Court does not like to create situations where it will be required to repeatedly decide on specific cases. But coming up with principles for the federal circuit courts to apply would lead to the same place it now finds itself on affirmative action in college admissions.
The Supreme Court has shirked this tough task by extracting the federal courts from passing on redistricting maps — leaving it to state courts.
A recent election has changed the composition of the North Carolina Supreme Court. It has decided to rehear Moore, and the nation’s highest court may decide to defer the issue.
A U.S. Supreme Court decision in Moore would put review of state maps back into federal courts where lifetime tenure makes judges much less subject to partisan pressure than state courts. More reasonable, nationally consistent principles would emerge.
• Peter Morici is an economist and emeritus business professor at the University of Maryland, and a national columnist.