James W. Pfister: Judicial review and gerrymandering

The Constitution is textually clear: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” (Article I, Section 4, herein Elections Clause). But it was not so simple in the recent case of Moore v. Harper (June 28, 2023).

The question was whether the “legislature thereof” was subject to the normal lawmaking process of the state that limits the legislature, such as judicial review. The Supreme Court held that the legislature is so limited; in addition, the Supreme Court can monitor the state courts, even regarding state law. Litigation will bloom.

Gerrymandering is the drawing of electoral districts for political advantage. Many, if their party controlled the legislature, were hoping the legislature could make gerrymandering and other electoral decisions by itself, known as the “independent state legislature theory,” just like the Constitution seems to say. They wanted to engage in partisan gerrymandering without the state courts bringing the state constitution into play, which might require “fairness,” “due process,” “right to vote” and “equality,” or the governor might veto the whole sordid plan. At stake could be the balance between the parties in the federal House of Representatives. (The Senate is not involved since senators are elected in statewide elections, not in districts).

Judicial review is the key issue here. It is not mentioned textually in the Constitution, but we have it. It was enshrined in our law by the famous case of Marbury v. Madison (1803), by Chief Justice John Marshall, “proclaiming that ‘[i]t is emphatically the province and duty of the judicial department to say what the law is’.” (Chief Justice Roberts, majority opinion). Judicial review is necessary to carry out a written constitution. Judicial review was well-known to our founders as a principle of government. Roberts wrote: “Although judicial review emerged cautiously, it matured throughout the founding era … state court decisions (using judicial review) provided a model for James Madison, Alexander Hamilton, and others…”

The court basically held that the Elections Clause was not an exception to the principle of judicial review: “[t]he Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review.” (Ibid.).

Not only is the state legislature under the state constitution, it is also under the federal Constitution: “[t]he legislature acts both as a lawmaking body created and bound by its state constitution, and as the entity assigned particular authority by the Federal Constitution. Both constitutions restrain the legislature’s exercise of power.” (Ibid.).

Although state courts have power to monitor the state legislature regarding the Elections Clause, they “do not have free rein.” (Ibid.). The federal Supreme Court has authority for “vindication of federal rights … to ensure that state court interpretations of (state) law do not evade federal law.” (Ibid.). For example, this term in Tyler v. Hennepin County the Court recognized a property right in the federal Constitution’s “Taking Clause,” overruling the state’s definition of property, traditionally a state subject. Thus, the federal Supreme Court could overrule a state court on a state question if the state court “’impermissibly distorted (state law) beyond what a fair reading required’.” (Roberts citing Chief Justice Rehnquist in Bush v. Gore, 2000).

Thus, the Supreme Court has given itself a role in this business of the Elections Clause. It warned state courts: “We hold only that state courts may not transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections.” (Ibid.).

This case brings checks and balances to the Elections Clause. The unfairness of letting a legislature exclude representation of a substantial portion of society was avoided in the defeat of the independent state legislature theory. But state courts were warned to not abuse their power, since the Supreme Court will have jurisdiction over this federal matter and can overrule state courts even regarding state law. Now, neither state legislatures nor state courts can go too far in partisan politics regarding the representation of the people.

Litigation should abound. Election lawyers will be busy. Again, Marbury v. Madison’s judicial review will control political excess, which is as it should be in a government under law.

James W. Pfister, J.D. University of Toledo, Ph.D. University of Michigan (political science), retired after 46 years in the Political Science Department at Eastern Michigan University. He lives at Devils Lake and can be reached at jpfister@emich.edu.

This article originally appeared on The Daily Telegram: James W. Pfister: Judicial review and gerrymandering