Citizen witness Victor Martinez presents a map of population growth in Pennsylvania to the Legislative Redistricting Commission on Wednesday, Oct. 13, 2021 (Capital-Star screen capture).
A former Pennsylvania congressman’s U.S. Supreme Court challenge to the state’s new congressional district map will most likely take a back seat to a similar case from North Carolina, but the implications for future elections in the commonwealth could be dire, constitutional law experts say.
Lawyers for Ryan Costello, a former Republican U.S. representative from Chester County, filed a petition in May asking the high court to review the Pennsylvania Supreme Court’s substitution of the state Legislature’s congressional map with its own earlier this year.
On Thursday, the U.S. Supreme Court agreed to hear the North Carolina case, in which Republicans seek to reinstate a legislative map that was rejected by the North Carolina Supreme Court as a partisan gerrymander.
In both cases, the challengers claim the courts lacked the authority to intervene in the process of redrawing congressional district lines.
At the center of their arguments is a theory dubbed the “independent state legislature doctrine” derived from readings of the U.S. Constitution’s Elections Clause and the provision in Article 2 for state legislatures to determine how members of the Electoral College are selected.
The elections clause states “the legislature” is charged with “the times, places and manner of holding elections for senators and representatives.” Similarly, Article 2 says each state shall appoint electors in the manner the legislature directs.
Proponents of the theory assert that it gives state lawmakers alone unfettered power to determine how elections for federal offices are conducted.
Constitutional scholars said a decision in which the Supreme Court adopts the independent state legislature doctrine would at least bring major changes in the way congressional districts are determined, and at worst open the door for partisan control of federal elections.
“The independent state legislature doctrine creates the possibility that a state legislature could go rogue,” Temple University law professor Craig Green said.
It could also give legitimacy to the idea that surfaced in Pennsylvania after the 2020 presidential election that the legislature could dismiss the electors chosen by voters and replace them with electors chosen by the party in control of the legislature, Green said.
In the current environment of highly polarized partisan politics, the two-party system is functioning poorly under a constitution that was not drafted with political parties in mind, said Kermit Roosevelt, a professor at the University of Pennsylvania law school.
“Giving control of elections to state legislatures seems perfectly fine in a world without political parties,” Roosevelt said.
The other branches of state government, state constitutions and state election laws serve as crucial checks on that control, he said.
“Endorsing the independent legislature doctrine takes away the protections we have from extreme partisan behavior,” Roosevelt said.
Conservative Supreme Court justices have already given indications in other cases that they may endorse the doctrine, said Michael Dimino, a professor at Widener University Commonwealth Law School.
After the 2020 presidential election, the Supreme Court declined to issue an emergency stay on Pennsylvania’s election results after President Donald Trump and Republican state lawmakers challenged a three-day extension of the deadline for mail-in ballots.
Justices Samuel Alito, Neil Gorsuch and Clarence Thomas indicated in their dissents that they would have taken the case.
“That decision to rewrite the rules seems to have affected too few ballots to change the outcome of any federal election,” Thomas wrote. “But that may not be the case in the future.”
The court also denied a stay earlier this year in the North Carolina case, with three justices dissenting and Justice Brett Kavanaugh agreeing to deny the stay, but writing that the court should grant an appeal, Dimino noted.
While many are wary of the effects of a decision adopting the independent state legislature doctrine, the question is an important one that needs to be answered, Dimino said.
While it is important to have checks on legislative power, it’s naive to believe that courts will always act with “a totally pure heart,” in matters concerning partisan politics, Dimino said.
“Having unelected or unaccountable people making decisions is not really a great story for democracy either,” he said.
Duquesne University Law Professor Bruce Ledewitz, who also is a columnist for the Capital-Star, said if the independent state legislature doctrine is adopted, voters will still have avenues to stop gerrymandering in the voting booth.
He said he foresees a push by good-government groups to elect legislators who will support constitutional amendments to put redistricting in an appointed commission.
“If the independent legislature doctrine is adopted then we will have to get rid of that in some other way. The people still control this issue,” Ledewitz said.
Dimino said it’s still possible the Supreme Court could take up the Pennsylvania case, but it is more likely that it sees the North Carolina case as an appropriate vehicle to decide the issue. Costello’s case will likely be vacated and remanded to a lower court for more proceedings after the high court makes its ruling, Dimino said.
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