How Independent Can State Legislatures Be?The Supreme Court identified a reasonable outcome in Moore v. Harper (holding that state legislatures do not possess exclusive constitutional authority over redistricting decisions). But the majority opinion is a mishmash of previous precedent and conventional state practice. The Court’s reading of similar language regarding state legislative decision-making powers in different provisions of the U.S. Constitution remains a muddle of inconsistency.
The case concerns legal challenges in North Carolina courts to the North Carolina legislature’s congressional redistricting map. Congressional redistricting is a national-level responsibility given to state legislatures in Article 1, Section 4 of the U.S. Constitution. The text provides that 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.”
The North Carolina legislature, advancing the “independent state legislature theory,” claimed that the constitutional text confers redistricting powers exclusively on state legislatures. If read this way—which is consistent with the way other similarly-worded constitutional texts are read (such as regarding state legislative ratification of constitutional amendments)—the North Carolina legislature’s redistricting map is constitutionally the final word on the matter and cannot be challenged in North Carolina courts. (It also means that governors have no power under the U.S. Constitution to veto redistricting legislation and that states cannot remove redistricting authority from legislatures and give that authority to specialized redistricting commissions.)
In rejecting the independent state legislature approach to this provision, the problem with the majority opinion is not that it reads “legislatures” in Article 1, Section 4 as a synecdoche for full state legislative processes (including executive vetoes and judicial review). After all, the reference to “Congress” in the very same sentence of the Constitution is read naturally as a synecdochical stand-in for the full national-level legislative process.
Rather the problem with the majority’s opinion is one of inconsistent interpretation of similar language across the Constitution. The Supreme Court provided the correct reading of Article 1, Section 4 in this case—or at least the most reasonable reading of this provision. But the majority ties itself into rhetorical knots trying to justify reading the same language differently in other parts of the Constitution.
The irony is that the Court has a long line of precedent in which it has read, and still reads, state-legislative authority in these other, similarly worded parts of the Constitution fully consistent with the most radical versions of independent state legislature theory. As such, the Court’s reasoning in Moore gives lie to so much of the hyperbolic commentary prior to the decision about how novel and radical the “independent state legislature theory” is.
It’s the majority’s attempt to justify its inconsistent reading of the same words in different parts of the Constitution that’s the problem with its opinion. To be sure, as Ralph Waldo Emerson’s quip goes, a foolish consistency is the hobgoblin of little minds. Nonetheless, the majority’s reasoning falls flat. Ultimately, it identifies little more than a proverbial “distinction without a difference.” There is little reason that constitutional delegation of national decision-making power to state legislatures should not be read uniformly across the Constitution, whether as an exclusive grant to state legislatures themselves, or, more reasonably, reading “legislatures” as a synecdoche for state legislative processes more generally...
Excerpt:rest at headline link
