The Constitution of the United States provides, in part here pertinent:
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.
U.S. Const. art. 1, § 4. Much has been made of this "Elections Clause" by at least 4, maybe 5, Justices currently sitting on the Supreme Court. See Supreme Power, published here.
They have advanced a theory that this clause makes State legislatures "independent," meaning not subject to review by anyone or anything except the federal Supreme Court on which they now sit. Not reviewable by other federal Courts. Not reviewable by State Supreme Courts or any State Courts at all. Not subject to State Constitutions.
This was the basis for accepting review in Moore v. Harper. The North Carolina Supreme Court held that because the legislature's districting legislation violated provisions of the North Carolina State Constitution, the districting was invalid. This group of federal Justices, confident of a majority vote, shares the collective aim of announcing that the North Carolina Supreme Court's invalidation of Republican-legislated Congressional districts in that case cannot withstand their gaze.
Under their "independent state legislatures" theory, the districting prescribed by the North Carolina Legislature is not subject to anyone else's review even if, as in this case, the highest Court of the State held that the districting violated a provision of the North Carolina Constitution that guarantees fair and free elections, among other provisions of the North Carolina Constitution.
This theory suffers from many fatal infirmities, not the least of which is that the U.S. Supreme Court has already rejected it. In fact, in Smiley v. Holm, 285 U.S. 355, 52 S. Ct. 397 (1932), the Court reversed the exact same view now advanced by some of the Justices currently sitting in Washington.
Without getting too much into the weeds, as they say, in Smiley the Supreme Court of Wisconsin held that the State legislature was independent of review even if the Wisconsin Legislature's redistricting legislation was vetoed by the Governor of Wisconsin. The U.S. Supreme Court detailed this history in Smiley, 285 U.S. at 364-65, 52 S. Ct. at 398-99.
The U.S. Supreme Court held that Article 1, Section 4 of the U.S. Constitution provides that the exercise of authority under that clause "must be in accordance with the method which the state has prescribed for legislative enactments." Smiley, 285 U.S. at 367, 52 S. Ct. at 399. Wisconsin's method of enacting legislation was and is the method followed in most if not all States today: Legislative bills have to be presented to the governor for approval. A legislative measure "redistricting the state for congressional elections" was therefore subject to review by the Governor of Wisconsin, like any other legislative measure in Wisconsin. Smiley, 285 U.S. at 363-64, 52 S. Ct. at 398.
Since in this case the Governor of Wisconsin had vetoed the redistricting bill enacted by the Legislature of Wisconsin when he "returned it without his approval," Smiley, 285 U.S. at 361, 52 S. Ct. at 397, the bill did not become law. Instead, it was invalid because it did not pass review by the governor.
In Moore v. Harper, the same Elections Clause is raised because the North Carolina Legislature's gerrymandered districting did not pass review by the North Carolina Supreme Court under the North Carolina Constitution. There really is no difference with past precedent concerning the Elections Clause in the federal Constitution, and that's the point.
Helen White has pointed out at Justsecurity.org that as recently as 2019, a different makeup of the U.S. Supreme Court held unanimously that State Constitutions could trump State Legislatures' partisan gerrymandering in congressional elections despite the Elections Clause in the federal Constituiton. Rucho v. Common Cause, ___ U.S. ___, 139 S. Ct. 2484 (2019).
In 2015, a different majority of Justices rejected the idea that state legislatures are independent authorities by upholding the use of independent redistricting commissions in federal elections to prescribe the "times, places and manner of holding elections for senators and representatives," to again use the words of Article 1, Section 4 of the U.S. Constitution. Ariz. St. Legis. v. Ariz. Indep. Redistrict. Comm'n, 576 U.S. 787, 135 S. Ct. 2652 (2015).
The same four or five Justices who push their unique "independent state legislatures" theory in 2022 are the same Justices who have no use for precedents or for previously settled law. Rather, they share the view that what they say is the law, rather like their view that State Legislatures are not reviewable except, perhaps, by them or by some other group of Justices who have enough votes. Their unyielding view is obviously established already; it will not be changed by legal reasoning or resort to things previously decided.
What can be done? What is a just response to judges making law by lining up votes rather than reasons?
To be continued soon on Claims and Issues Blog, where related issues have previously been addressed.
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