(RightWing.org) – Every 10 years, the US Constitution mandates that states must take a census to determine how many congressional seats each state may hold. In 2020, several Democratic states lost seats after losing population migrating to GOP-led states. As usual, some states are fighting over new congressional maps as the legislatures gerrymander congressional districts, giving one political party an advantage over another.
Two cases, one from Pennsylvania and the other from North Carolina, are pending before the US Supreme Court (SCOTUS) in what’s known as a shadow docket, meaning there will be no formal court hearings or rulings. At stake is the function of how states determine congressional seats and if a governor or court can override a state legislature’s maps. The Left says the outcome of a SCOTUS decision could ensure that democracy loses, but is that a correct assessment? Four justices have expressed support for the independent state legislature doctrine, and four appear against it. That means the issue is in the hands of conservative Justice Amy Coney Barret.
What Is the Independent State Legislature Doctrine
According to Republicans, the US Constitution gives state legislatures the power to redistrict congressional boundaries. The Constitution does not share that power with federal or state courts or governors in any plain reading. Article I, Section 4 of the US Constitution explicitly says that state legislatures alone prescribe the times, places, and manners of holding elections unless Congress makes changes through the law. This is known as the independent state legislature doctrine.
In 2020, Supreme Court Justice Neal Gorsuch said that only the state legislatures are responsible for setting election rules according to the Constitution. In addition to Gorsuch, Justices Clarence Thomas, Samuel Alito, and Brett Kavanaugh have embraced the independent state legislature doctrine. Supreme Court Chief Justice John Roberts opposes it along with liberal Justices Sonia Sotomayor, Elan Kegan, and Stephen Breyer.
Now, the cases involving Pennsylvania and North Carolina could be decided by one person: Justice Barrett. If Barrett joins the conservative side of the court, it could forever change how states draw congressional boundaries.
Gerrymandering an Issue Since the Beginning of the Country
If it weren’t for gerrymandering, Congress may have never ratified the US Constitution in 1787. In addition, in 1788, anti-federalist Patrick Henry gerrymandered Virginia’s 10 congressional seats to block Federalist James Madison from being seated and proposing the Bill of Rights, which Henry opposed vehemently.
While Henry failed, gerrymandering became an accepted form of political practice. Without it, some argue America wouldn’t be America. So much so that Chief Justice John Roberts even acknowledged in a 2019 case that founders tolerated gerrymandering and saw it as an unavoidable part of the political system.
If the Constitution plainly reads the legislature is the sole decider of congressional boundaries, will the Supreme Court override 100 years of court rulings to the contrary?
Stay tuned.
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