Republicans in Pennsylvania’s state Senate endorse N.C. lawmakers’ case in the Moore v. Harper redistricting dispute at the U.S. Supreme Court. But Missouri’s high-profile Republican secretary of state warns against a key element of the case put forward by N.C. legislative leaders.
Those contrasting opinions became clear in friend-of-the-court briefs filed Friday at the nation’s highest court.
In Moore v. Harper, the Supreme Court could decide the extent to which state courts can intervene to block election maps drawn by state legislatures. N.C. legislative leaders argue that the state Supreme Court overstepped its authority in the 2022 election cycle. The court threw out congressional maps drawn by lawmakers and substituted a court-drawn map instead.
N.C. lawmakers argue that the Elections Clause of the U.S. Constitution gives legislatures authority over the redistricting process for federal elections. Under what some experts label the independent state legislature doctrine, a state court cannot use a state constitution to justify rejecting a congressional election map drawn by lawmakers.
Pennsylvania Senate Majority Leader Kim Ward and the rest of her Republican caucus filed a brief supporting their N.C. counterparts. Pennsylvania courts have repeatedly rejected the legislature’s preferred congressional election maps since 2011.
“Pennsylvania’s recent jurisprudence helps to illustrate the undesirable outcomes that can occur when state court justices, in reliance on vague provisions in state constitutions and while ostensibly crafting judicial remedies, deem invalid and then create or re-write redistricting and other laws that govern federal elections – the very approach that the North Carolina judiciary took in this case,” according to the brief from Pennsylvania’s Republican state senators. “This approach not only contravenes the Elections Clause, but it also has a number of other anti-democratic consequences. For instance, it can incentivize the legislative or executive branch in a divided state government to refrain from negotiating with the other branch, in good faith, to enact a requisite redistricting plan in response to a court order, viewing a court-drawn map as a politically preferable alternative.”
“For similar reasons, it can encourage one branch in a divided state government to avoid engaging meaningfully with the other one to replace a judge-made map with a legislatively-created plan,” the brief continued. “It also results in redistricting plans and other election laws that are created by state court justices – governmental actors who are not subject to the same level of voter accountability as the officials who are supposed to make those laws. And, similarly, it means that justices are making the sorts of policy decisions that are not only constitutionally committed to, but also most appropriate for, state legislative bodies.”
A group called Restoring Integrity and Trust in Elections, RITE, also filed a brief supporting N.C. lawmakers. RITE’s board of directors includes former two-time U.S. Attorney General William Barr and National Review legal expert Andrew McCarthy.
“This case presents a contest of power between a state legislature exercising delegated federal authority and a state court applying a state constitution,” according to RITE’s brief.
“The text, structure, and history of the Constitution easily resolve this contest,” the brief added. “The Elections Clause … provides: ‘The Times, Places, and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”
“Thus, under the Clause, the legislature (not a state court) has the power to draw congressional maps. The Framers crafted this allocation of power to entrust the exercise of political judgment on the political matter of elections to the lawmaking branches, subject to the regulations of Congress and the federal Constitution.”
But at least one high-profile Republican political figure cautions against a Supreme Court ruling endorsing the Elections Clause argument. John “Jay” Ashcroft is secretary of state of Missouri. He’s the son of a former U.S. attorney general from the George W. Bush administration.
In his own friend-of-the-court brief, Ashcroft addresses the question of whether state courts can nullify legislators’ regulations regarding the “manner of holding elections” for Congress. His answer? “Unequivocally no.” But Ashcroft disputes the idea that redistricting falls under the definition of “manner of holding elections.”
“[C]onstruing the Elections Clause to include redistricting raises difficult, troubling questions about congressional oversight the ratifying public voiced at the founding,” Ashcroft argued.
Tying redistricting to the Constitution’s Elections Clause could open the door to congressional meddling in state election maps, Ashcroft explained.
“[C]onstruing the Elections Clause to include redistricting raises troubling questions: Suppose the Missouri legislature passes a 7R-1D map [with seven congressional districts favoring Republican candidates and one favoring Democrats]; absent compactness or racial concerns, can Congress nevertheless revise that map as a 4R-4D map?” Ashcroft asked. “If Congress can ‘make or alter’ state maps, can it do so for purely partisan reasons? If so, are there any limits to Congress’ power here? If no limits, then isn’t this the kind of ‘omnipotent’ Congress the ratifying public feared?”
The U.S. Supreme Court will hear arguments in Moore v. Harper later this year.