Opinion | A Supreme Court gerrymandering case could further undermine democracy - The Washington Post

Opinion | A Supreme Court gerrymandering case could further undermine democracy - The Washington Post

by Leah Litman, Kate Shaw and Carolyn Shapiro

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[In] Moore v. Harper, the justices will review a North Carolina Supreme Court decision holding that the state constitution prohibits extreme partisan gerrymanders. The Supreme Court’s choice to take the case could presage yet another decision that will undermine democracy, by prohibiting other government institutions — here, state courts — from protecting voting rights and democracy.

***The issue in Harper is whether the federal Constitution prevents a state court from determining whether the state legislature violated the state constitution in setting rules for federal elections. The petitioners — Republican legislative leaders — are asking the court to hold that it is unconstitutional for state courts and state constitutions to protect federal voting rights.

This argument rests on a blinkered reading of two clauses in the Constitution that assign to the legislature of each state the job of identifying the “Manner” of appointing presidential electors and the “Times, Places and Manner” of congressional elections. Neither clause suggests that state legislatures can violate their own constitutions.Chief Justice William H. Rehnquist suggested this far-fetched theory in a concurrence in Bush v. Gore. But the theory failed to command a majority, and it was largely ignored for almost two decades.

But in the 2020 election litigation, Justices Neil M. Gorsuch and Brett M. Kavanaugh, in addition to Justices Samuel A. Alito Jr. and Clarence Thomas, expressed sympathy for the theory.

Since 2020, a mountain of scholarship has emerged thoroughly debunking the ISLT. Its historical bases are nonexistent. The Founders understood well that states could choose to have constitutions that constrain state legislatures, and that view has held sway in practice and law ever since. And state executive officials have also enjoyed considerable discretion to operate federal elections since the founding.