By Peter Mayer
It is close to impossible for the average American to follow the decisions coming out of the Supreme Court of the United States. However, certain matters that come before the court may have a direct impact on the functioning of our democratic form of government — a concept that should be of universal interest.
On December 7, 2022, arguments were heard by the Supreme Court in a case called Moore v. Harper. The central issue was the question as to whether state legislatures should have independent power, not subject to any judicial review by state courts, to set election rules that could be at odds with state constitutions, not the least of which is the drawing of congressional maps warped by partisan gerrymandering.
Arguments held in December in the Supreme Court usually means we are due for a decision sometime in June.
The case concerns a voting map drawn by the North Carolina legislature that was rejected as a partisan gerrymander by the North Carolina State Supreme Court. Republicans seeking to restore the legislative map argued that the state court was without power to act.
Article 1, Section 4, of the U.S. Constitution says that “the times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof.”
The argument by the petitioners is that a state’s legislature is the only branch of government that matters in elections. Proponents of this theory say this means that no other organ of state government can alter a legislature’s actions on federal elections. Even rules that violate a state’s constitution could not be reviewed and overturned.
The result of such an interpretation will be that many provisions of state constitutions, decisions of state courts and policies of state election administrators would be called into question.
Keep in mind that the determination of the outcome of this case is not something that benefits Republicans at the expense of Democrats, or Democrats at the expense of Republicans. The party that can be adversely affected depends upon who controls the respective state legislatures, as both parties, when they are in power, tend to draw districts that benefit themselves.
Article 1, Section 2, of the U.S. Constitution states that “representatives … shall be apportioned among the several states … according to their numbers” — population. “The actual enumeration shall be made … every ten years.”
This constitutional mandate, the census, is the basis upon which our congressional maps are redrawn every 10 years. After the filing of the census, state legislatures then redraw congressional districts based on population changes as reflected therein.
These changes are usually applied in a manner that favors whatever political party is the majority in the particular state’s legislature. If the maps are determined to violate the “one person, one vote,” a constitutionally mandated standard, a state court has the power to set the newly drawn electoral maps aside with a direction to go back to work and draw maps that don’t violate the Constitution.
Should it be determined that there can never be state judicial review of an election matter, policies would follow that would endanger, for example, the right to a secret ballot, state-mandated independent redistricting commissions in Arizona and California, ranked choice voting in Alaska and Maine, and automatic voter registration in Michigan and Nevada. It would include potentially dismantling detailed regulations concerning voter list maintenance in Indiana and Iowa, and machine testing procedures in Montana and Ohio.
Essentially, this would mean that election rules that clearly violate a state’s constitution could not be reviewed and overturned.
In Moore v. Harper, the State Supreme Court of North Carolina rejected this argument, stating that the independent state legislature theory would be “repugnant to the sovereignty of states, the authority of state constitutions and the independence of state courts, and would produce absurd and dangerous consequences.” Ironically, in the case it is the Republican Party arguing for a position that weakens state sovereignty, a policy position they have always opposed.
Indeed, the U.S. Supreme Court implicitly ruled out support for this theory in 2019 in a case called Rucho v Common Cause, in which Chief Justice John Roberts stated that partisan gerrymanders are outside the purview of federal courts. Specifically the court stated, “Provisions in state statutes and state constitutions can provide the standards and guidance for state courts to apply in outlawing partisan maps.”
Since Rucho, state constitutions and courts have stepped in to regulate partisan maps in some states. Recently, partisan maps were rejected by state courts in Maryland, New York, North Carolina and Ohio after the 2020 census. They have relied on a clause in most state constitutions guaranteeing “free and fair elections” — a clause that does not exist in the federal constitution — and on free speech and assembly clauses that have been interpreted as being stronger than federal guarantees. Under the independent legislature theory, state constitutions would become irrelevant.
Notably, however, the U.S. Constitution gives Congress the power to enact federal election laws and override state ones in the same Article 1 clause that hands election authority to state legislatures. The enactment of the 1965 Voting Rights Act is an example of the exercise of that power.
The same Article 1, Section 4, of the U.S. Constitution (which says that the time, place and manner of holding elections shall be prescribed by the state legislature thereof) also says, “Congress may at any time by Law make or alter such regulations (enacted by the state), except as to the places of choosing Senators.” However, we now live in an era of partisan deadlock, and most federal efforts to strengthen voting rights have been blocked by Republican opposition.
The independent state legislature theory is nothing more than an attack on the delicate check-and-balance system between the three branches of government guaranteed by our Constitution and for which so many have fought since the founding of the Republic.
All citizens, both Republicans and Democrats, should make their voices heard that such a revolutionary interpretation of election law is unacceptable.
Just because the Supreme Court may allow this doesn’t mandate the states to follow it. States are always free to set the rules as a matter of state sovereignty, as long as they don’t violate the Constitution. Therefore, the people of each state must let their state and federal elected representatives know that precluding judicial review of election matters is unacceptable.
Citizens should lobby them to make sure they put in place laws and rules that allow courts to retain jurisdiction to review allegations of gerrymandering, or any attack on voting rights as established by state law, by either political party.
Without the insurance of judicial review on these matters, the democracy we all treasure will be put at significant risk — a risk that all freedom loving Americans can ill afford.
Peter Mayer, a resident of Riverhead, is retired from the bench. He served as a justice of the New York State Supreme Court. Prior to ascending to the bench, Mayer specialized in defending criminal cases on the federal and state level in Suffolk County and throughout the country. He is presently in private practice.
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