SCOTUS and Moore v Harper: To Be Democratic Or To Seem Democratic
![Moore v. Harper](https://i0.wp.com/ordinary-times.com/wp-content/uploads/2022/10/NC-Districts.jpg?resize=720%2C306&ssl=1)
The Judicially Enacted Map of Congressional Districts in North Carolina, In Effect For The 2022 Election
While I don’t blog on commission, I do sometimes take requests. And my friend Andrew Donaldson, who just happens to be Managing Editor around these parts, asked me to look into the case of Moore v. Harper on behalf of a listener to his podcast.
Hoo boy. This is the main event. Sure, we have a case where we can get back to arguing about gay wedding cakes (or in this case, gay wedding websites) and that’s going to be good culture war fun for everyone. But Moore v. Harper is unquestionably this term’s Very Big Deal for the Supreme Court of the United States.
I
The basic conundrum of this case is found in Article I, section 4, clause 1 of the U.S. Constitution, the “Elections Clause” or, more accurately, the “Congressional Elections Clause:”
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.
And let’s not forget that in the Seventeenth Amendment, the election of Senators shall be by those voters who have the same qualifications as those who are eligible to cast ballots for “the most numerous branch of [that state’s] legislature.”
So then we have to confront the question of “May the state legislature act contrary to the state’s Constitution?” and immediately thereafter, “Who gets to decide if the legislature has done that?” Traditional notions of judicial review are that the state’s judiciary gets to decide that, meaning, ultimately, that state’s Supreme Court. Note that the U.S. Supreme Court does NOT get to decide this; the state supreme court is the final authority on questions regarding that state’s law. The U.S. Supreme Court only gets involved if an issue of federal law is implicated.
And relevant here, in 2019 the Supreme Court decided a case called Rucho v. Common Cause, which said that there was no federal right against a map drawn intentionally to achieve a partisan political advantage for the majority party of the legislature drawing it. But state laws, and often state Constitutions, sometimes do forbid such things.
So let’s look at what actually happened in Raleigh, North Carolina in the year and a half since the 2020 census results were published and North Carolina went from 13 to 14 representatives in Congress.
II
In Moore v. Harper, the immediate question has to do with the map of Congressional districts in North Carolina. After the 2020 census, North Carolina, like all states, had to redistrict its various legislative maps, and North Carolina does so according to a simple legislative decision; the governor does not get a veto. So in practice, that means that the legislature elected in a year ending in zero draws three maps for the next ten years: one for the State House (120 seats), one for the State Senate (50 seats), and one for Congressional districts (14 seats).
So this happened in November of 2021, and the maps were promptly challenged by various left-of-center groups like the League of Conservation Voters and the NAACP. The trial courts and ultimately the state Supreme Court rules that the maps (as to the Congressional districts, we’ll call this the “Original Legislative Map”) violated Noth Carolina’s state constitution’s prohibition on partisan gerrymanders. This is the Original Legislative Map:
![Original Legislative Map of Congressional Districts for 2022 as drawn by the General Assembly](https://i0.wp.com/ordinary-times.com/wp-content/uploads/2022/10/Original-Legislative-Map.jpg?resize=720%2C319&ssl=1)
Original Legislative Map of Congressional Districts for 2022, as drawn by the General Assembly
So, after striking this map down, the Wake County Circuit Court (affirmed later by the North Carolina Supreme Court) postponed the 2022 primary election from March to May of this year, and told the General Assembly to try again.
It did, passing a new map in February of 2022. The state legislative maps were approved, but the new Congressional map (the “Revised Legislative Map”) got struck down again. The Court then appointed special masters who drew a map that the Court ordered be used in the primary election. That’s called the “Enacted Map.” It will be used for the election on 08 November 2022. Whether it will be used again thereafter is presently indeterminate.
This is the Enacted Map. Sorry I couldn’t find one with the same color scheme as the map published by the state.
![The Judicially Enacted Map of Congressional Districts in North Carolina, In Effect For The 2022 Election](https://i0.wp.com/ordinary-times.com/wp-content/uploads/2022/10/NC-Districts.jpg?resize=720%2C306&ssl=1)
The Judicially Enacted Map of Congressional Districts in North Carolina, In Effect For The 2022 Election
What’s more, we don’t yet know for sure who will win in each of the new districts because the first general election using this map has not yet taken place. Daily Kos did a precinct-by-precinct survey of the newly-drawn districts on the enacted map. Daily Kos found that majorities of voters in seven of the districts voted for Biden and in seven of the districts the majority voted for Trump, so that’s a hint of what will happen.
III
So now we have two groups of people. The petitioners to the U.S. Supreme Court are clustered in and around the Republicans. This group wants the Original Legislative Map to be restored. The respondents are clustered around the Democrats, and they want the Enacted Map to be kept. No one is arguing for the Revised Legislative Map.
The Republican petitioners explicitly advance what’s now known as the “independent state legislature” theory. Their claim is that the plain text of the U.S. Constitution gives to a state legislature, and the state legislature alone and unchecked, the authority to draw maps of Congressional districts.
They point to a variety of political decisions made in the early days of the Republic congruent with this, indicating that the idea is not a new one, only a newly-prominent one, and a rejection of a putative proposal by Charles Pinckney in the Constitutional Convention to delegate the initial regulation of Congressional elections to the state as a whole,[1] and other sections of the Constitution which drill down into particular units of state government,[2] which in my opinion does have some persuasive power.
Also of some interest is the legal authority relied upon by the majority of the North Carolina Supreme Court to strike down the two legislatively-drawn maps. Specifically, they cite sections of the state’s constitution that are quite general in scope, specifically the following:
All elections shall be free.
The people have a right to assemble together to consult for their common good, to instruct their representatives, and to apply to the General Assembly for redress of grievances; … .
Freedom of speech and of the press are two of the great bulwarks of liberty and therefore shall never be restrained, but every person shall be held responsible for their abuse.
… No person shall be denied the equal protection of the laws; … . Harper v. Hall, (Feb 12, 2022) 868 S.E.2d 499, citingN.C. Const. Art. I, §§ 10, 12, 14, 19.
From these general principles and tracing through some (but not a lot) of their own precedent interpreting them, the majority arrives at the conclusion that the Legislature is bound by the North Carolina Constitution, that it is the entity that gets to decide whether or not the Legislature acted contrary to it, and that Constitution does not allow the creation of maps which are intended and likely to result in legislative representatives who are “highly non-responsive” to the will of the people and thus such maps are “incompatible with democratic principles.”
The petitioners call these clauses “vague” — and they aren’t wrong! These are broad, general principles of law, as well as aspirational statements of how things ought to be. To distill actionable constitutional principles out of these does require some judicial work. Whether you want to call that work “interpreting the text of the state constitution” or “judicial activism” is probably a matter of perspective. But that’s what the petitioners are appealing from, and this reasoning, pleasing to your author though it may be both in route and destination, may not be the strongest liquor in the cabinet.
IV
Probably the strongest argument against the petitioners’ theory, however, is the decidedly inconvenient (to them) fact that pre-existing legislation appears to authorize exactly what the courts did here. Specifically, actions “challenging the validity” of legislative maps, including congressional district maps, may be filed in the Wake County Superior Court and be heard by a three-judge panel, per N.C. Gen. Stat. §1-81.1 and N.C. Gen. Stat. §1-267.1(a); such a court is authorized to identify state constitutional defects in such maps per N.C. Gen. Stat. § 120-2.3, and thereafter to remedy any defects and impose a “substitute plan” including a judicially-drawn map for the next election. N.C. Gen. Stat. § 120-2.4(a)(1).
So you say it’s up to the Legislature to say how maps get redrawn, petitioners? Well, the Legislature did that, and it said the Courts should be involved. The Legislature involved the state courts. It specified a court to hear the case and explicitly empowered that court to do what the courts here did.
Well. I mean. That ends it right there, doesn’t it? It’s not a close call, as I see it. So why is the U.S. Supreme Court hearing this at all?
One possibility is that we need to confront is that the General Assembly could, if it chose, repeal all of these statutes and at least purport to deprive the state courts of the ability to review Congressional maps. How likely it is that this would happen is a question I will leave to people who are operating on the ground politically in North Carolina. But it could happen, so maybe this isn’t completely moot?
Further, based on the reasoning in the underlying case, the North Carolina Supreme Court could find its own basis for acting as it did, independent of any explicit statutory authorization to act, relying instead on the text of the state Constitution – as broad and debatably “vague” as that text may be. So maybe we have “susceptible of repetition” and therefore not moot from that?
But that scenario seems like it’s underripe, to the point of being a hypothetical exercise. Issuing an opinion based on a hypothetical is pretty much an “advisory opinion” and we know Federal courts don’t do that.
V
No, what’s going on is the Petitioners argue, a little more quietly than the complaint about what the courts did in this specific case, that these provisions of North Carolina statutory law are also unconstitutional. That would be based on the theory that the state legislature cannot delegate any mapmaking functions to the courts. The argument is that a state legislature’s authority in this sphere is, by the plain text of the Constitution, not only plenary, but exclusive and non-delegable.
And this idea of denying certain kinds of checks to specific branches of government isn’t totally crazy! There’s a case going back to 1983 called INS v. Chadha, 462 U.S. 919, that holds that a “legislative veto” claimed by Congress over a rulemaking agency, in that case the predecessor to the Customs and Border Patrol, is unconstitutional. The idea that a veto is an executive check on legislative power but cannot be a legislative check on executive power has some foundation in precedent.[3] So maybe there simply can’t be a judicial check on at least certain kinds of legislative power, like choosing the “manner” of elections by drawing district maps?
At least one amicus brief argues that the understood meaning of the word “Legislature” in this context, historically, referred to a state’s “law-making apparatus,” not just the formal institution of the Legislature; that the Framers understood that a state legislature would be interacting with that state’s governor and that state’s judiciary in the ordinary process of making laws. This is also not an implausible argument. It has the pleasing twist of demonstrating that a historic textualist approach, which the majority of the Court today claims to favor, can be used to reach the opposite result of what the petitioners seek.
As a general rule, I’d argue that we ought be very cautious about the idea that there are certain kinds of governmental activities that are beyond checks and balances and the more impactful those activities are, the less they should be allowed to go unchecked. Different institutions of government checking and balancing one anothers’ exercise of power is hardwired into our Constitution and was a bulwark of arguments for the Constitution as an instrument of liberty during the ratification debate. It remains so today.
It’s certainly true that even under Petitioners’ theories, Congress can check state legislative power in this arena. Congress can pass laws like the (former) Voting Rights Act. There is no plausible reading of the Congressional Elections Clause that denies that Congress has such power. However, we are faced with the very sad fact that the Supreme Court of the United States is defanging or invalidating the Voting Rights Act section by section, and Congress has failed to respond to this challenge. But that’s a different story for a different day. What matters here is, petitioners can argue that this isn’t an unchecked legal power, because Congress could involve itself in this process if it wants to.
A final consideration here is that it’s generally a losing proposition to tell a Court “Your Honors, you lack the legal power to act here,” because in a legal culture founded upon general acceptance of the concept of judicial review, arguing to a panel of judges that they do not have such a power risks kinship to farting at a funeral. Perhaps you have to do it, and you’re a boor if you don’t at least feel awkward about having done it. The best result you can realistically hope for is that folks who are downwind from it pretend like they didn’t notice it happened and carry on as they were going to anyway. But you also risk generating laughter and condescension.
VI
Are the petitioners going to win?
Well, we don’t know. When the case first got filed with the Supreme Court, the petitioners asked for an emergency stay re-implementing the General Assembly’s original map. They lost, but three Justices, Alito, Thomas, and Gorsuch dissented in a four-page opinion that suggests they see substantial merit to the Independent State Legislature doctrine. And we have a somewhat more oblique hint, in Justice Kavanaugh joining this concurrence from Justice Gorsuch, that Kavanaugh is at least warm to the theory.
So are there five votes for this theory? I count Thomas, Alito, and Gorsuch as three. It’s not hard, given the concurrence, to see Kavanaugh as a fourth and Barrett as a plausible fifth. Given that the stay application was denied, we have hints that the Chief may well join his Sisters Sotomayor, Kagan, and Jackson in voting no, but again that’s just a hint. The balance of power on this one looks like it rests with the “center” right triad of Roberts, Kavanaugh, and Barrett.
The stay application gives us more tea leaves to read than we’d normally have, but that’s all they are. Reading tea leaves to count noses is a very chancy proposition, especially before we’ve heard any oral argument. I don’t know, today, who will win.
VII
The world could look very different if the petitioners do prevail.
About a third of the states do not use solely their legislatures to redistrict. Some states have entirely separate institutions that exist for no purpose other than redrawing legislative maps every ten years, some of which are independent of any other political institution and others less so. Still others allocate various roles in redistricting to their Governors or Secretaries of State. Most of these states are western. My own Oregon calls in the Secretary of State to draft proposed district maps if the Legislature can’t handle the job on its own; California, where I moved from, has a very elaborate independent commission whose work product is subject to state Supreme Court approval.
Absent Congressional action, state legislatures would be free to gerrymander to their hearts’ content, because in a world where the petitioners won, at least as to Congressional maps, there would be no check on their activities. No state court, no governor, no state constitutional provision could gainsay the maps made by state legislators.
If the Independent State Legislature doctrine prevails, it could be that all of those systems are, wholly or partially, unconstitutional. It would probably take a new case to resolve that, but the result would be next to foregone.
But the bigger issue is the one raised during the 2020 election by a guy who is currently the Republican nominee for Governor in Pennsylvania, Doug Mastriano. Mastriano pointed to a DIFFERENT election clause in the Constitution, article II, section 1, clause 2, which says in relevant part:
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress … .
The critical issue being the bit that reads “in such Manner as the Legislature thereof may direct,” which sounds a lot like the language in the Congressional Election Clause. Because if the Constitution’s wording drilling down to the state legislature and ONLY the state legislature also applies to a state’s choice of Presidential Electors….
Why, that would mean that a state legislature could, and debatably would be required, to cancel elections for President of the United States. The state’s legislature could decide on its own, without consulting the state’s voters, who the state’s electors will be. At least one Republican candidate for a Governor’s seat this cycle has signed off on that being something that he might try to make happen.
Just so you know: Democrats control both houses of eighteen states, which combine to total 205 electoral votes. Republicans control both houses of thirty states, which combine to total 305 electoral votes.[4] Who knows what the hell would happen with the District of Columbia, which doesn’t have an independent legislature (anything the City Council passes can be overruled by Congress). Really, it wouldn’t matter. If pushed to its logical extension, this could lock up the White House for Republicans for as long as they can hold 270 electoral votes’ worth of state legislatures, given effectively unlimited freedom to gerrymander as they saw fit.
This wouldn’t mean a permanent national government controlled by Republicans, necessarily, but a very durable one, one which would likely control the House of Representatives and the White House pretty easily until and unless a massive political shift occurred, and one in which the nature of the Senate would give Republicans a significant advantage at achieving a majority there, too.
Now, let’s be clear, that’s an unlikely end game. Before the Great Election Denial Chaos of 2020-2021, we would have laughed this potential off. Today? Realistically, that sort of scenario is still pretty far-fetched, but it is palpably easier to imagine than it would have been even three years ago. But it’s still something I have to regard as so politically unpalatable that I don’t believe it will come true. I have a hard time imagining voters standing for being disenfranchised from voting for President, even if those voters do like the result. Not even the likes of Brad Raffensperger or Mark Brnovich, both highly partisan Republicans and both of whom were under great political pressure after the 2020 election to cheat for Trump, were willing to superimpose their partisan preferences over the voters of their states. The norm of democracy is strong still, despite some loud voices trying to erode it, and the endgame where state legislatures choose Presidential electors instead of voters after generations of popular voting will be, I have to believe, more than the vast majority of Americans will bear.
The real danger is that it will remove yet another check against gerrymandering, which is already too subtle a political trick for most of the public to notice and already entering a brave new era of maximizing partisan control, for both parties, where each holds sway. That will push our legislatures out of alignment with the general mood of the electorates they represent. That will cause disengagement amongst the citizenry and move laws further away from what the voice of the people demands. I don’t think this will overturn democracy as we’re told to fear. I think it will erode it, furthering a destructive process already underway. I hope this doesn’t come to pass, and I try to remember my own advice about counting noses on the Court before oral argument.
But it’s becoming harder every Term to not succumb to dread.
VIII
Oral arguments are scheduled for 07 December 2022 at 10:00 a.m. Eastern time. It’s the only case on calendar that day. Highest stakes I can recall since at least Shelby County v. Holder.
Expect a barn burner.
[1] However, this may not be real. According to an amicus brief authored by constitutional scholars whom Petitioners made the mistake of citing favorably, “The language Petitioners have trumpeted to this Court is phony. This language was no part of the real Pinckney Plan actually presented to the Philadelphia Convention. Beginning around 1819, a bogus document masqueraded as the Pinckney Plan. This bogus document was immediately questioned by James Madison and definitively discredited more than a century ago— facts well known to expert historians. The true story appears in the short Appendix to Farrand’s Records that Petitioners cite but apparently never read to the end.” Which is both a caution about the dangers of goal-focused historical research as well as something that hyper-genteel Supreme Court practitioners would call a “sick burn, dude.”
[2] As cited in Petitioners’ brief: “art. I, § 2, cl. 4 (authorizing ‘the Executive Authority’ of each State to ‘issue Writs of Election’ to fill vacancies); id. art. V (giving state legislatures duties related to proposing and ratifying amendments); id. art. VI, cl. 2 (binding ‘the Judges in every State’ to follow the federal Constitution, laws, and treaties). And the Guarantee Clause specifies with delicate precision that States may request federal intervention against domestic violence through ‘Application of the Legislature, or of the Executive (when the Legislature cannot be convened).'” Id. art. IV, § 4.” Actually, that’s perhaps not a very long list, now that I look at it; the ‘Writs of Election’ clause is at least partly superseded by the Seventeenth Amendment; asking judges to follow the law is about as modest a check on state power as you can imagine; and when have state legislatures ever sought federal intervention against domestic violence, hasn’t that sort of thing always been done by a Governor as a practical matter?
[3] But note: the structure of the legislative veto in Chadha was that if a single house of Congress disapproved of the regulation, then the regulation would be invalid. The theory makes sense: if the rule would not have passed out of one house for approval by the other to become law, it therefore should not be law. The Chadha Court found that this was an independent structural flaw with the proposed legislative veto that Congress had devised in that case, because Congress can only act legislatively, and invalidating a regulation is an act of legislation, and therefore requires the concurrence of both the House and the Senate.
[4] Minnesota and Virginia have split partisan control of their legislatures, and Nebraska’s unicameral legislature is ostensibly non-partisan.
We had a sort of parallel case here in Maryland except the Democrats are the bad guys. A state court held that the gerrymander violated the state constitution. The larger context involved an independent commission drafting districts which was then disregarded by the legislature for the wildest map in decades of wild maps. Ultimately a compromise map was accepted by the judge, though it did delay the state primaries until July which had its own (IMO negative) political consequences. I assume if SCOTUS accepts this argument Maryland’s gerrymander will be reimposed post haste.
Anyway on the larger issue we need to find a solution. This whole foxes guarding the henhouse theory of government should be abhorrent to everyone. My lawyer analysis tends to follow the textual argument that the federal courts don’t have a say but if that’s the case then neither should they interfere with a state’s own judiciary. Probably the only comprehensive solution involves state compacts so no one has to unilaterally disarm and referenda where possible to force the issue. Either way it’s hard for me to think of anything more un-American than this situation.Report
Illinois has now gone one step further and just gerrymandered the state supreme court districts to ensure that legislative gerrymanders are protected. I think most lawyers are opposed at least to some extent because those districts (which map onto the intermediate appellate courts) are more than just voting districts, they are the courts they need to travel to and sources of influence for various appointments. I think the notion that the courts will necessarily be fair arbiters of districting is not true.Report
Agreed. There is no guarantee.Report
The ILL Supreme’s have separate districts?! Never knew that and it’s a terrible idea.Report
I guess I assumed that was common, at least where justices are elected. Illinois has generally been more about local control and districting, and for a very long time preventing Chicago from having the representation in the legislature proportionate to its population (one-ninth of the representation of someone living in a downstate district).Report
Mississippi has a version of this:
Report
I like the solution offered by William Baude and Michael McConnell in the Atlantic: In Moore v. Harper, the justices should not side with the views of either party
Basically, all legislatures are bound by the Constitution that created them, so all their acts are subject to judicial review, but courts are not empowered to create districts (legislate) as part of their judicial review.Report
I think that is the best answer. Of course the cynic in me assumes that in that moment would begin the push to amend state constitutions.Report
In some number of states, mostly in the West, the people have reserved the power to modify the state constitution by initiative, without involved the legislature (in the sense of the elected body) at all. In Arizona v. Arizona the SCOTUS upheld the people using that power to take redistricting away from the elected legislature entirely and give it to a commission. The Court will be opening such a can of worms if they decide to overturn Arizona — most western states have some number of laws/constitutional provisions regarding federal elections and/or redistricting done by initiative.Report
The Illinois Constitution provides for ballot initiatives as a means of amendment. An imitative to amend the Constitution to have an independent panel conduct the districting was stopped from appearing on the 2016 ballot by the Illinois Supreme Court on a 4-3 partisan break. Supporters of the initiative targeted the only downstate Democratic Justice in 2020 when he was up for retention. He was the first S.Ct. Justice to fail a retention vote and then the legislature voted to change the state supreme court districts for the next election.Report
I’m not sure why the Petitioners’ argument would be compatible with the Voting Rights Act.Report
It’s not. Or rather, it wasn’t.
The VRA is a dead letter at this point. John Roberts’ work in that sphere is nearly complete, having been programmed to dismantle it in any way possible and executing that mission over the course of his career not unlike the Terminator searching for Sarah Connor.Report
But you said it was:
“It’s certainly true that even under Petitioners’ theories, Congress can check state legislative power in this arena. Congress can pass laws like the (former) Voting Rights Act.”Report
Apologies, I must have been unclear about that.
Congress *can* pass laws like the Voting Rights Act. That means Congress has the capacity to pass a law in this arena. That does not mean that it has actually done so.
After the cases of Shelby County v. Holder (§4(b) and by logical extension §5, preclearance for historically discriminatory jurisdictions held unconstitutional as “outdated”), and Brnovich v. DNC (§2 claims of dilution of votes on racial basis to be evaluated on, effectively, a strongly deferential new standard), the two most potent provisions of the VRA are now effectively neutered. And thanks to Russo v. Common Cause, federal courts are now out of the backstopping-against-gerrymandering game, even if a political gerrymander has the practical effect of reducing the voting power of racial minorities (because black voters vote overwhelmingly Democratic, a gerrymander that reduces the voting power of Democrats but wasn’t explicitly aimed at Blacks is not a Constitutional or VRA violation).
Congress has yet to pass any legislation moving into the voids left behind by Russo, Shelby County, and Brnovich. But even under the Petitioners’ theory, it might choose to do so.Report
But wouldn’t the Petitioners’ theory preclude Congressional decision-making? That’s the part I’m not getting. They seem to be saying that no one has any authority but the state legislatures.Report
” They seem to be saying that no one has any authority but the state legislatures.”
They don’t “seem to” be saying it, they’re actually saying it, and they’re saying it because it’s what’s written in the Constitution.
And yeah, “we can change the Constitution, bro,” you’re right but we have to say we’re doing it, we can’t just administratively reinterpret an emanation from the penumbra and declare that the plain language of the document actually means something completely different Because Racism.Report
Except for the part where “the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.” Where there is indeed a federal oversight idea prescribed since the federal Constitution gives the federal Congress this power.Report
Let’s look at this for a second and how nonsensical the theory is:
When it says that ‘Legislatures’ have a right to do that, who decides which one? Because I seem to recall that in _most_ states, the process is that there are _two_ legislatures and they both decide on something and then it is signed into law by a governor. (And in fact this was true of all states at the time that was written.)
Do they both get together and vote as one body? What does ‘the Legislature’ deciding something mean?
And heck, how we decide the outcome? Last I checked, ‘things are decided by majority vote’ is also a process provided by state constitutions, and hence doesn’t apply in this operator of ‘pure state Legislature without reference to anything else’ that the US constitution supposedly creates!
How does ‘the Legislature’, absent the state constitutional framework that explains how both sides work with each other and passes laws, do _anything_?
And if you accept that the state constitution is involved, then ‘the Legislature’ must include the governor, a normally vital part of passing laws, and certainly one back then even if some states have neutered them since.
And at that point the entire premise falls apart.
There is no way to interpret ‘Legislatures therefor may direct’ where Legislature means ‘the actual elected people to the office’ instead of ‘the process by which a state has set itself up to create laws’. Because if it’s just the people, outside of a state constitutional framework, they have no way to direct anything!Report
In fact, it’s worth expanding on just that, because that clause doesn’t say ‘The Legislature appoints’, the clause says ‘The Legislature _directs the State_ to appoint’.
It’s really difficult to figure out how some collection of people have the right to direct a state to do _anything_ absent that right being enumerated under the state constitution.
Which of course ‘the Legislative’ (In this theoretical meaning of ‘the literal people elected to office’) does not have. Those people have a right to sit down in respective chambers, joining a body empowered under the state constitution, and follow a state constitutional process for creating laws, which involves other people and delegation of power and all sorts of things, and that is the only way they have a right to direct the state to do anything.Report
“When it says that ‘Legislatures’ have a right to do that, who decides which one?”
the…state?
which it…says in the Constitution?
I don’t understand why you’re spazzing about this. The document is not actually unclear. If you’re really that upset about the idea that choosing electors is a legislative function but not a lawmaking one, then go back in time two hundred fifty years and take it up with Ben Franklin.Report
The language clearly says the legislature directs, not the legislature chooses. So if Joe Biend wins enough votes in a state to gain reelection under the state’s laws, the legislature has DIRECTED how that selection is to be carried out. The Constitution doesn’t say the Legislatures get a choice.
Legislatures direct by passing laws, not by screaming form the rooftops. And lest you forget, that direction is modified by:
Which makes it plain that if the legislatures do untoward things, the federal Congress is allowed (and perhaps even obligated) to step in and change the laws. Not chose the winners and losers.Report
No, the Petitioner’s theory doesn’t implicate any Congressional law. As Philip points out the Constitution expressly authorizes Congressional law in this area. The North Carolina Supreme Court did not invalidate the map based upon federal law, so it’s not at issue.
However, the North Carolina courts arguably ignored Congressional law, which prescribes the outcome when a state has not “redistricted in the manner provided by the law thereof.” There is a menu of options (2 U.S.C. 2a) and where as here North Carolina gained a seat, federal law requires the election to be held based upon the previous lawful districting, plus one at large seat. Petitioners never reach this point because they dispute that the maps were properly held invalid by “the law” of the State legislature.Report
“Well. I mean. That ends it right there, doesn’t it? It’s not a close call, as I see it. So why is the U.S. Supreme Court hearing this at all?”
“Because the Court is now pretty much just an explicit political body?” is probably the most obvious answer.
Nice post, Burt!Report
…See the last sentence of section VII.Report
The second sentence is an obvious fact that can never be said allowed in polite company.Report
There is a big question about whether cooler heads will prevail. Every now and then, the reactionary 6 can decide that something is a bridge too far and would destroy its legitimacy. Or that a Trumpian judge or Court of Appeals went too far. There does not seem to be rhyme or reason as to when the Supreme Court makes this decision. Last years prime example is when Kavanaugh and Roberts joined with the liberals to smack down Trump judges trying to take over the chain of command of command and the judge in Texas that tried to make himself the sole head of DHS.
This might not be one of those cases even though there are lots of conservatives out there who realize Harper v. Moore would be a very bad thing if the Supremes decide to endorse the theory.Report
Your theory is that they’re completely political except when they do inexplicable things. My theory is that they believe what they say. Conservative Court-watchers have a pretty good record of guessing how things will play out, so I guess my theory wins.Report
Those two theories aren’t actually incompatible.Report
Not if they’re consistent and predictable.Report
Great analysis Burt, clear, readable and with a lemon fresh scent too!Report
If there’s already 3 votes in favor, with a likely 4th, then it almost doesn’t matter.
Because if representative democracy for a nation of 330,000,000 people is hanging by the whim of a single person, and only because the political party that represents about 40% of the electorate is demanding an end to representative democracy, then the handwriting is on the wall.Report
OK, this is off-topic, but I don’t have time to respond to this, and anyway I’ve been getting boring. So, if you understand your opponents’ thinking as well as you insist you do (and there’s plenty of documentation of my various ramblings), how would I reply to this?Report
Go argue with the people on your side of the aisle, who are making every effort to prove my point.
Start with Micheal Anton of the Claremont Institute, who wrote the Flight 93 manifesto.
Or the crew at the Federalist who argue that the parents of trans kids should be jailed, or anyone who cheered the DeSantis immigrant cruelty, or the large majorities of Republicans who refuse to accept the results of the 2020 elections.
These people all agree with me that representative democracy is incompatible with the Republican party’s goals.Report
Note that the U.S. Supreme Court does NOT get to decide this; the state supreme court is the final authority on questions regarding that state’s law.
Bush vs. Gore was an exception, because of the overriding legal principle that the wrong guy might have won.Report
The stuff I need to say first:
Okay. That ain’t gonna happen. I appreciate that.
So what’s left?
I am a fan of figuring out something like a “neighborhood”. Think about your city. We have “the Broadmoor”, we have “downtown”, we have “Rockrimmon”, and so on. Sure, maybe we will get into arguments over whether the flip switches at this street or the next one over, but that’s less important than knowing that this zone is this one and that zone is that one.
States are somewhat similar.
Instead of streets, they have counties. Use the county lines as the borders. If you’ve got a county with three colors in it? That is an *IMMEDIATE* shenanigan.Report
The least gameable way to draw district borders is to make it an optimization problem. Just find the districting map that divides the state into n districts of equal population with the minimum total border length.
If you want, you can add an additional constraint that the district borders must overlap zip code or county borders or whatever, but the secret ingredient is removing human discretion.
This sounds like it might be NP-hard, so you can make it a contest. Put out a request for map proposals, and whichever map has district borders summing to the shortest total length wins.
The real problem, of course, is that this plan has to be passed into law by a legislature with the means and motive to draw borders favoring them.Report
I think that the Supreme Court has officially ruled that that is supposed to be a secondary or tertiary consideration.
Equal population, I mean.
I think I kind of agree? I am more than willing to bet that “downtown” has more people than “Rockrimmon” and “Broadmoor” has fewer than either. But, lemme tell ya, those areas have distinct interests.Report
What Brandon refers to is, I think, one way of defining the property of a district PD Shaw refers to as “compactness.” To my understanding, Reynolds v. Sims, 377 U.S. 533 (1964), makes equal population between electoral districts the primary and overriding mapmaking principle.Report
I stand corrected! I thought that equal population was bumped aside in order to address a handful of historical issues.Report
I seem to recall we had a good discussion here a number of years ago re ideas for how best to handle districting… I tried googling based on a few scattered memories but didn’t come up with anything. Might’ve been on one of the sub-blogs. Anyone remember?
Anyway, IMO it’s one of many areas where the first step for the discussion should be to agree on what the goals are (or try to) before moving to solutioning.Report
the first step for the discussion should be to agree on what the goals are (or try to) before moving to solutioning.
Plausibly provide a “fair” map while ensuring political dominance for my side.
My own prejudices are that I prefer districts that look like they have a center. Like, would it be easy to make a cookie that looked like a district? Heck yeah, then that’s a district that I like.
If the district looks like somebody had a very productive sneeze, it’s a district that I do not like.Report
Obviously your first sentence there captures the reason for most of the disagreement, but that ain’t going anywhere.
In this digital age, should we even care about the topography? I mean, i guess there are some practical considerations regarding where offices are located, but as far as the goal of representing different populations is concerned, seems like we’re just as likely to be connected with people virtually as physically.Report
“districts” are how the American two-party system does coalitional government.Report
The communities along a river could have more in common than some nearer-by farm towns.Report
If you can point to the river and say “the river defines the middle of this district”, then I’d be cool with that too.
But we’re stuck instead with the stuff that we have rather than the stuff that we’d theoretically be okay with.Report
(Was it this one? Maybe it was this one?)Report
Thanks, neither of those were what I had in mind (I was thinking of one where I’d made a suggestion, which is why I remembered it in particular — it’s probably more like 2012), but of course this is a topic that would naturally have been discussed numerous times in this blog’s history.Report
As I see it, the complaints about redistricting maps are mostly not about traditional concerns over (1) compactness. There are usually two other issues. People want (2) competitive races so that they have choices on the ballot. The advocates behind the unsuccessful challenge to Wisconsin’s redistricting wanted (3) efficiency, in that they wanted the overall results in a statue to approximate the results if there were no districts (i.e. if 55% of state voters voted for a Republican legislator, only approximately 55% of the districts should produce Republican legislators).
I see all three of those in tension with each other, and where partisan distribution is not random, but in the case of Democrats concentrated in large cities, there is probably no way to get (2) or (3) with compact districts. There is probably no way to get both (2) or (3) without severely contorted districting.Report
This may be just from my own personal experience of watching this play out with Maryland but I don’t think it’s so impossible. I also don’t think it’s inherently illegitimate to end up with lesser competitive districts. For example there is no possible districting that results in Republicans being competitive in my district, absent some major changes in the Republican party, and that’s ok. What didn’t make sense was that for years I, living in a close-in DC suburb, shared a district with my cousin who lives over an hour away in a totally different region. You also had a situation where Baltimore City was split between 3 separate districts.
The independent commission we had actually did what I thought was quite a good job in following basic principles of (i) trying not to break up distinct regions (ii) trying not to break up distinct sub-state political entities, which here boils down to counties and Baltimore City, (iii) basic parity of populations per district, and (iv) no jumping the Chesapeake Bay. Under this result there would only be 1-2 competitive districts but I think you’d be hard pressed to say anyone was being disenfranchised by it, or that the outcome was rigged by the map.Report
Your state looks like a Gerrymander. Just for curiosity, are the basic principles set forth in legislation or did the independent commission program its own instructions? From a small “D” democratic perspective I don’t like the North Carolina courts taking vague principles to make law, and probably don’t think independent commissions should be making those decisions either.Report
That’s such an interstate yo mama joke.Report
Heh the lines were drawn as a dumping ground for British papists that would avoid encroaching on commercial activities in Virginia and Protestant virtue in Pennsylvania. Pretty sure it was something like that anyway.
The commission was appointed by the governor and I believe was instructed to research how districting should be done in a neutral, non-partisan way, then itself determined these principles. In a way I agree with your sentiment. But then I also watch the reality of that play out. Take a look at the old map, pre litigation and tell me if you think it was consistent with small ‘d’ democratic principles.
https://www.washingtonpost.com/news/wonk/wp/2018/03/28/how-maryland-democrats-pulled-off-their-aggressive-gerrymander/Report
A proper MD map would be local by Parish. Like Louisiana.Report
“I also don’t think it’s inherently illegitimate to end up with lesser competitive districts.”
It’d be reasonable to expect this, both as a cause and an effect. People who have similar lives might see the world similarly. And on the level of state or local government, you’d expect to see people being attracted to areas with their preferred policies.Report
Even tougher when there’s a demand to simultaneously account for desired proportional distributions across other characteristics besides party registration, e.g. race/ethnicity.Report
Yeah, I might add another factor which is the degree of localization. The reason Congress passed a law mandating single-member districts for Congressional Representatives was to promote representation of localized minorities. This almost certainly meant African-Americans in the Southern black belt and in Northern cities, but would have benefitted other local groups. Getting rid of single-member districts and replacing them with multi-member districts or statewide races would make the results more majoritarian.Report
This is absolutely correct and distills into a few sentences some really advanced thinking about legislative mapmaking.
For myself, I would prioritize, within the mandate that all districts must have roughly equal population (not numbers of registered voters), efficiency 45%, competitiveness 40%, compactness 15%. But YMMV.
There are at least three open-source platforms that will allow you, an ordinary user, to draw precinct-by-precinct or block-by-block maps. As far as I know, they all tap directly into publicly-available databases of the amalgamated local election officials and the U.S. Census. They can be found at https://www.districtbuilder.org/, https://districtr.org/, and http://autoredistrict.org/. This was originally available on a proprietary basis as early as in the wake of the 2000 census, but now you can have it on your desktop for free. If you want to really geek out about this, go play with one of those for a while and compare your work product to what your state actually did. Technology is pretty damn amazing sometimes.Report
Serious question though- doesn’t giving 40% to competitiveness also create its own incentive to gerrymander some really bizarre districts? Like I strongly encourage you to take a look at the horror show of the old Maryland map in that post article. The basic concept was to saturate out rural areas by connecting them with tendrils to the urban center. However there’s no reason this couldn’t be done in reverse. It seems to me like what we really want is people vying for the support of the median voter in a coherent district (which may at times still produce really partisan results, but hopefully fewer of them writ large), not close elections just for the sake of close elections.Report
[Insert my ancient link to the old 538 map builder here]
I’m not sure that ‘incentive’ is the right word here… it would create a rule that would make a purely “Compact” map (a’la BB above) have to account for another variable and would probably make it less compact.
But, without the “Competitiveness” as a rule, we can 99% guaranty that the result will be safe districts for both sides… just apportioned in some sort of defensible way according to the ‘0 year proportions.
I do, however, take your point that making “Competitive” a rule that the data people have to account for *is* a political decision… I just think it’s a better political decision than Safe Districts.
If we want to really embrace Proportionality, I’m good with that too… but then we’re moving away from single member districts – because the proportionality has to be fluid and not baked into the zip-code.
But yeah… all prudential political decisions. I could live with Burt’s formulation, could also flip Compact/Efficiency if preferred… but I’m personally going to vote/advocate for competitive districts as a factor.Report
Absolutely it could lead to that result.
To me, the objective is to create a legislature made up of mostly legislators who think their job is to represent the will of the people as a whole. Which means they need to feel like they’re vulnerable if they do something unpopular, and more secure if they do things that are popular. And critically, it needs to DISincentivize “only do things that appeal to your own partisan base” and to PRO-incentivize “do things that reach out to the other side from time to time.”
Which means that yes, I’m possibly creating a deliberative body of people like Kyrsten Sinema, Joe Manchin, Susan Collins, and Lisa Murkowski. Frustrating as it might be, I think these types of legislators are the ones closest to what the “median voter” wants and thinks. And yes, a decent number of them will come from decidedly wonky-looking districts.
It’s all trade-offs. If I had my way, these are the trade-offs I’d make and why. As I say, YMMV. I see the argument for compactness: compact districting gets specific communities specifically represented.Report
Well I’m in agreement with your outcome. And I do think that the result of successful reform on this front would result in a lot more of the kinds of Senators you’re listing, not the kind hardcore partisans would prefer.
I’m just also not sure that we are getting those results necessarily because the jurisdictions are competitive. I mean, the go to example of Manchin actually comes from a really uncompetitive jurisdiction. He just happens to have a unique way of relating to his constituency. Now my hope is that compactness would result in more of a Manchin-like incentive to compromise (or just run heterodox candidates) to put a constituency in play. I worry that if we do competition at the expense of that it’s still getting the same kind of hard partisans, just from a different process. And while I also agree with you in principle that we would benefit from a more broad minded kind of legislator we also want them to be able to bring the interests of their constituents to the table.Report
Foreigner take on a small part of this.
Your courts should get over whatever bug crawled up their butts about issuing advisory opinions. They’re great ways of providing guidance to governments on what is and isn’t legal and avoid so much time and grief in the judicial process waiting on a lawsuit to bring the issue forward.Report
It isn’t a bug, it’s the case and controversy requirement of the Constitution. It would also create a major separation of powers issue in our system.Report