As you well know, elections, particularly federal elections, have been much talked about in the past several years. Of course, a good deal of this has to do with the fact that no small number of Americans believe our presidential election of 2020 to have been botched, resulting in an illegitimate president.
However, that’s definitely not the only reason. If you didn’t know already, this is a congressional election year in which about half of both houses and their members could be booted out and replaced.
If that wasn’t enough to talk about, it is expected that the House of Representatives, if not the Senate as well, could be turned over to the GOP, giving them the majority for the first time in several years. Naturally, this has both major parties on edge, doing everything they can to ensure a win.
And for some, that starts with congressional mapping or redistricting.
According to our Constitution, states are divided into districts that vote for a representative to take their needs to Congress. These districts are decided or mapped out based on population sizes. Therefore, as populations shift according to national census counts, so too must the district lines to ensure that all districts in the states are as equal as possible in population density.
In this way, it is assumed that each district will be given the same amount of weight as another in the House, even if one may be larger in actual square miles.
The issue comes when one party or another maps out the changing districts to provide themselves with an advantage over the other. This is called gerrymandering and is illegal. However, it is very hard to prove.
Recently, a case of this has made its way to the Supreme Court.
In North Carolina, Moore v. Harper alleged that Republicans in the state legislature drew new district lines to disfavor the Democrats. The North Carolina supreme court decided that the map drawing violated the “fundamental right to equal voting power.”
However, map drawers say that the court has no right to decide on the issue, as it is up to state legislatures alone to decide on election-related matters, according to the Elections Clause of the Constitution.
And so the case has made its way to the nation’s highest court, where it is set to be heard and decided on during the next term.
But it’s already making massive waves throughout the country. So huge, in fact, that all 50 chief justices from all 50 state supreme courts have come together to write an amicus brief asking that the high court refuse to decide on it, possibly changing the way elections are forever processed in the US.
As I mentioned before, cartographers for the North Carolina state legislature believe that courts should have no ruling on elections. According to the Constitution’s Election Clause, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.”
To them, that means that courts have no say in the matter and no role in the election process. This position is known as the “independent legislature theory,” which maintains that the Constitution “prohibits state courts from reviewing state laws regulating federal elections.” And it is an opinion that has prevailed in most states but has not been made official for decades.
The late Ruth Bader Ginsberg was one of the latest to not agree with the position in Arizona State Legislature v. Arizona Independent Redistricting Commission. Justice Antonin Scalia noted her decision as “so outrageously wrong, so utterly devoid of textual or historic support, so flatly in contradiction to prior Supreme Court cases, so obviously the willful product of hostility to districting by state legislatures.”
However, Scalia’s view, the most popular one then, might not be so well-received anymore, at least among those in the judicial system.
In their amicus brief, the chief justices argue that the Elections Clause “does not otherwise displace the states’ established authority to determine the final content of their election laws, including through normal judicial review for constitutionality.”
In fact, they say a review of any such cases by the court is no different than any review held by legislature under the Constitution, citing Alexander Hamilton’s 78 Federalist as proof of such.
Which view is correct?
It would seem that it is up to the High Court to decide, and precisely why they have been asked to hold off any decisions yet.