Byron Williams: The court is poised to rewrite federalism – Winston-Salem Journal

Byron WilliamsWinston-Salem Journal

Prior to becoming president, Gerald Ford defined the impeachment criteria of high crimes and misdemeanors as whatever a majority of the House of Representatives considers them to be at a moment in history. One might offer a similar critique of the independent state legislature theory (ISL).

In the upcoming Supreme Court case of Moore v. Harper, the court will decide whether ISL is merely a fringe theory or a doctrine of constitutional law. ISL offers that a state legislatures plans for new congressional districts cannot be overridden by a state supreme courts interpretations of its states own constitution, including any provisions limiting partisan gerrymandering.

The U.S. Constitution in Articles I and II refers to state legislatures as having a role in federal elections. The Republican-led state legislature in North Carolina, based on being the party in the majority at the time of the census, drew congressional lines that favored the Republican Party a long-held shared practice by the party in the majority at the time of the census.

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The N.C. Supreme Court invalidated those districts, saying excessive partisan gerrymandering was in tension with the state constitution.

The court opined: In every single one of the 52 elections decided within a 6-point margin, the Enacted Plans give Republicans an outright majority in the states congressional delegation, state houses, and the state senate. This is true when Democrats win statewide by clear margins.

The N.C. legislature is bringing the case before the Supreme Court. Invoking ISL, it argues that the state legislature, and only the state legislature, when regulating federal elections, including the presidency, is free from complying with the state constitution, state courts, a governors veto or the people who elected them. It is a peculiar interpretation of the U.S. Constitution that grants legislative fiat when deciding the rules for federal elections.

ISL contends that when the U.S. Constitution refers to the legislatures of the states, that means the elected legislature in isolation possess plenary authority to act. This is a far-fetched theory that belies the fundamental understanding of checks and balances and separation of powers.

Article 1, Section 1 of the U.S. Constitution reads:

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Does anyone possessing elementary civic knowledge believe the aforementioned power granted to the legislative branch does not require a signature from the executive branch to become law or judicial review? ISL would be a broad and disruptive insertion into the nations constitutional inheritance that forgoes intellectual heft in lieu of brazen political gain.

The Supreme Court has rejected this argument in four prior cases, but what will it decide in the post-Roberts court? Normally the court is named after the chief justice, i.e., the Burger court, the Rehnquist court, etc. But in the aftermath of overturning Roe v. Wade, Chief Justice John Roberts appears to have lost the court to five uber-conservative justices who are less concerned with the institution than with enacting a judicial philosophy that appears uncomfortably close to the political agenda of the Republican Party.

In the 2019 case Rucho v. Common Cause, the Supreme Court decided in a 5-4 decision that partisan gerrymandering claims cannot be decided in federal court; they are a matter for the states. The N.C. Supreme Court has decided and now the Supreme Court will take up the matter to rule on the legitimacy of ISL.

One never knows how the court will rule, but Moore v. Harper possesses the heavy after-taste of Bush v. Gore, the 2000 Supreme Court ruling that in effect decided a presidency. The questions to be brought before the court: Who runs U.S. elections and who sets U.S. election law, and does the Constitution allow state legislatures to act alone?

If the court holds for the N.C. legislature, it would create a plethora of unintended consequences around the nature of federalism and the adoption of new methods such as rank choice voting while granting state legislatures more leeway to preemptively choose electors for the Electoral College that could conceivably ignore the will of the voters.

Will the post-Roberts court add ISL to the canon of constitutional law? If so, it could conceivably open a new chapter in American democracy thats not pursuant to a more perfect union.

The Rev. Byron Williams (byron@publicmorality.org), a writer and the host of The Public Morality on WSNC 90.5, lives in Winston-Salem.

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Byron Williams: The court is poised to rewrite federalism - Winston-Salem Journal