This article is part of TPM Cafe, TPM’s home for opinion and news analysis. It was originally posted on The Conversation.
In a case to be heard in the coming months, the U.S. Supreme Court could rule that state legislatures control congressional elections, including the ability to designate electoral districts for partisan political advantage, unconstrained by state law or constitutions.
At stake is a legal theory called the “doctrine of the independent state legislature,” which is posed by the court’s consideration of a dispute over North Carolina’s gerrymandered congressional districts. In early 2022, North Carolina state courts found the legislature violated the state constitution when it drew congressional districts in favor of Republicans. The Legislature has affirmed that the United States Constitution gives it the power, unimpeded by state courts’ interpretation of the constitution or state laws, to regulate elections to Congress, and asks the Court supreme to accept.
If the court agrees, it could free up state legislatures to take power away from voters — “We the people” in constitutional parlance — and reverse a two-century trend of extending people power in congressional elections.
Some election and constitutional law analysts have previously suggested that state legislatures might have similar power over presidential elections. The US Constitution allows state legislatures to determine how a state chooses its presidential electors, arguably leaving the legislature free to choose presidential electors on its own without a popular election.
People Power in Early America
The people had little power in congressional elections when America was founded.
The unamended Constitution required that United States senators be chosen directly by their state legislatures, not directly by voters. This was the case until the ratification of the 17th Amendment in 1913, which required that US senators be elected by the people.
The Constitution always required that United States representatives be chosen by the people, but who could vote was severely limited.
The American view of democracy in the late 18th century saw voting as a privilege bestowed by the state, not a right. Voting was usually limited to a select group of people – adult white men with property.
Some states, including North Carolina and New Jersey, allowed free black women or men, or both, to vote in the late 18th and early 19th centuries. Nevertheless, who could wield power in congressional or state elections was a matter of clemency granted by state legislatures.
People power today
As American democracy matured, the people gained power as the electorate grew through various constitutional amendments.
Voting remains a right granted by each state. However, states can no longer limit voting rights based on race, gender, non-payment of a poll tax, or age if a voter is 18 or older. Functionally, adult citizens who have not been convicted of a crime are eligible to vote in federal and state elections.
In addition, the value of a vote is protected. In the 1960s, the Supreme Court recognized the one person, one vote doctrine in the Constitution. This doctrine requires that each congressional district in a state contain approximately the same number of residents.
Before the doctrine was recognized, a congressional district in one state could have many times the population of another district in the same state. A vote in the larger district would have a fraction of the power of a vote in the smaller district.
In the wake of the one person, one vote doctrine, each vote carries roughly the same weight.
Giving the people the right to vote makes representatives more responsible and accountable to their constituents. The adoption of the doctrine of the independent state legislature can reverse liability.
Those who defend the legitimacy of this doctrine say it rests on the Constitution’s granting to state legislatures regulatory power over congressional elections in Article I, Section 4.
This article reads as follows: “The times, places, and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof; but Congress may at any time, by law, make or modify such regulations. It gives state legislatures primary authority to conduct congressional elections, subject to congressional regulation through federal law.
For example, for much of the nation’s history, states could choose US representatives through districts or through an at-large system. However, federal law now requires that representatives be chosen only by the districts.
Furthermore, the legislative power of the state was treated as if it were limited by other state government actors. In many states, governors can veto redistricting maps they deem unfair or inappropriate. Similarly, as in the North Carolina case, courts can rule such cards illegal or unconstitutional.
A strong version of the doctrine could give a state legislature the power to draw congressional districts without any oversight from state courts or the governor. Because state courts enforce a state’s constitution and statutory law, a strong doctrine of an independent state legislature could leave the state legislature unfettered by state law in this area.
However, in a well-functioning democracy, the constitutional and statutory law of the state must reflect the preferences of the people of a state. The Supreme Court reminded the Arizona legislature of this point in a 2015 ruling that allowed a citizens’ initiative in that state to bypass the legislature on redistricting, instead requiring congressional districts to be designated by a commission. independent. If the doctrine of the independent state legislature were to be adopted by the present Supreme Court, this power could not be exercised by the citizens.
Limited federal protection
If the court adopts the doctrine of independent state legislatures, the legislatures would still be subject to regulation by the US Constitution and by federal law, such as the Voting Rights Act.
However, the court limited the protections built into the voting rights law. In the 2019 judgment, Rucho v. Common Cause, the Supreme Court held that partisan gerrymandering was a political matter, not subject to constitutional regulation. In that decision, the court noted that state constitutional and statutory law could be used to stop partisan gerrymandering.
Three years later, the court is set to hear a case that could shield state courts from scrutiny of partisan gerrymandering by state legislatures. Adopting a strong independent state legislature doctrine would leave partisan gerrymandering unregulated at the state and federal levels.
State legislatures, unconstrained by state law, could then create aggressively gerrymandered congressional districts, eventually leading to an increasingly partisan Congress with traffic jams and political failures.
Disempower the people
When the Constitution was ratified, the state legislature was the locus of state power. This power was exercised by a few men who were not accountable to the general people. The state legislature was charged with acting in the best interests of the citizens. However, citizens had no effective means of forcing legislators to act in the interest of the people.
Over time, citizens gained more control over state legislatures through expanded voting and by becoming a larger part of many states’ legislatures.
In a 21st century democracy, the constitutional assignment of regulatory authority to a state legislature regarding congressional elections might be viewed as an assignment of primary authority to a state legislature—but authority subject to a variety of other limitations imposed by state constitutional law. , the statutory law of the state, the courts and the citizens.
When America was founded, the Constitution made the power of the people a matter of grace granted by the state legislatures. As American democracy matured, people power became a matter of right under the Constitution.
The doctrine of the independent state legislature threatens to make people power a matter of grace, reinstating an anachronistic view of democracy that was thought to be long outdated.
Henry L. Chambers Jr. is a professor of law at the University of Richmond.
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