No, state legislatures do not have almost unchecked authority regarding federal elections; state courts are empowered to decide whether the district lines legislators draw and the voting laws they write are consistent with state constitutions and legally created independent commissions and other entities having legitimate roles as well. That was the refreshingly sane ruling handed down by the U.S. Supreme Court Tuesday. It effectively upholds last year’s rejection right up through the New York Court of Appeals of the Legislature’s obnoxious partisan gerrymander last year on the ground that it flagrantly violated our state Constitution.
Unlike the landmark 2019 case in which the Supreme Court wrongly ruled federal courts had no place in regulating partisan gerrymandering, Tuesday’s decision was not a case in which the bench fractured along traditional conservative-liberal lines. Chief Justice John Roberts wrote the opinion of the court, joined by conservatives Brett Kavanaugh and Amy Coney Barrett and liberals Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson. Only Justices Clarence Thomas, Samuel Alito and Neil Gorsuch subscribed to a watered-down version of the cockamamie notion, called the independent state legislature theory, that under the U.S. Constitution’s Elections Clause, state courts have no business preventing state legislatures from violating their own states’ constitutions.
The key U.S. constitutional provision here states that “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.” To those who consider themselves the purest textualist interpreters of the literal words of the nation’s founding document, that’s an assertion that legislators in state capitals can run roughshod over their own state’s highest legal code without being called on it by the judicial branch.
Nonsense. “State courts retain the authority to apply state constitutional restraints when legislatures act under the power conferred upon them by the Elections Clause,” wrote Roberts. We only wish such legal common sense prevailed over the distorted readings of blinkered so-called originalists in every other realm.
