COLUMN: Judicial review for me… | Columns

A case on the upcoming Supreme Court docket, Moore v. Harper, concerns the power of state magistrates to rule on the constitutionality of redistricting maps of state legislatures. The cases weighing the extent of state judicial authority over legislative redistricting may seem less consequential than some of the Court’s precedent-breaking decisions on abortion and gun regulation, but the Court’s decision could significantly affect the conduct of elections in the United States for the foreseeable future.

Over the past decade, a new front has opened up in the culture wars, as Republican strategists have identified state legislative races as targets of opportunity in what have been dubbed REDMAPs. Republican success in taking control of state legislatures gave a huge advantage in the federal redistricting process, allowing Republicans to gerrymander several critical mid-tier states.

After stealing a march on Democrats, Republicans determined to lock in GOP electoral Congressional benefits in key states have faced a hurdle. In states like North Carolina, Michigan, Pennsylvania and Wisconsin, state supreme courts were more likely to be divided or controlled by Democratic justices, who interpreted the equal protection clauses in their state constitutions. respective state as banning the kinds of ruthless partisan gerrymanders that Republicans need to regain control of the federal House of Representatives.

The Republican response has been to seek to exclude state supreme courts from the redistricting process by invoking a new theory first promulgated by former Chief Justice William Rehnquist in an obscure agreement with Bush v. Gore (2000). Known as the “Independent State Legislature” (hereafter ISL) theory, adherents argue that the “elections” clause of Article I, Section 4 confers plenary, non-reviewable authority on the legislatures of the states to determine the “times, places, and manners” for holding federal congressional elections. desks.

Despite the support of three members of the Court’s conservative majority (e.g., Thomas, Alito and Gorsuch), ISL suffers from several serious legal and policy flaws that should give most conservative justices pause.

First, ISL has no textual basis in the Constitution or any subsequent law. No evidence has been adduced to suggest that the framers at any time intended to interfere in the operations of state government in the manner contemplated by this doctrine. It takes a bizarrely narrow interpretation of the Election Clause to support the view that it bestows such unchecked authority on state legislatures; At last review, the election clause confers authority on “the state,” not exclusively on the state legislature. Moreover, it also requires ignoring other key constitutional principles, such as the wording of Article IV guaranteeing a “republican” system of government. Likewise, the “reserved powers” ​​clause of the Tenth Amendment was clearly intended to prevent such authoritarian encroachments on the political institutions of the state.

Second, a Court decision based on the ISL would directly override the previous majority decision in Rucho v. Common Cause (2019), where Chief Justice John Roberts, rejected any role for the Supreme Court in adjudicating partisan gerrymandering. Writing for a 5-4 majority, Roberts argued that while the federal judiciary could not rule on the incorrect drawing of federal district boundaries, “state statutes and constitutions can provide standards and guidance to state courts” to weed out overly discriminatory partisan gerrymanders.

Roberts’ opinion in Rucho affirms both the constitutionality of state judicial review and its legitimate role in interpreting state constitutional principles and statutory laws protecting the franchise. Backtracking after such a brief period would certainly fuel criticism that the majority of the Court is pursuing ideological agendas rather than standing “above the fray” and interpreting the law.

Third, the Court’s endorsement of the ISL would further erode the credibility of the electoral process by privileging counter-majority principles within the Constitution. After successfully gerrymanding a majority of state legislatures, Republicans would be empowered to lock in permanent majorities in the House of Representatives; indeed, an extreme interpretation of the ISL could be invoked to empower state legislatures to reject the legitimate outcome of a presidential election and send Republican voters instead.

This kind of “Heads I win tails you lose” logic is the death of democratic elections.

Several members of the Supreme Court’s conservative majority have complained about criticism of their recent rulings. Chief Justice Roberts, in a recent speech, said he was mystified about the “connection between opinions that people disagree with and the legitimacy of the Supreme Court.” Robert’s stubbornness ignores the hardball hardball tactics that have created the current 6-3 majority on the field. More importantly, Robert’s false confusion ignores an important distinction; while judicial decisions are inevitably political, they should not – must not – be perceived as partisan.

As Associate Justice Elana Kagan recently observed, when the judiciary abandons judicial restraint and pursues maximalist outcomes that clearly confer advantage on one side over the other, the judiciary naturally questions its legitimacy.

Dr. Ken Hicks is a political scientist and department head of history and political science at Rogers State University. The opinions, beliefs and views expressed in this column are those of the author and do not necessarily reflect the official position of the editors at Claremore Progress or Rogers State University.