Petitioners’ Bizarre Answer in Moore v. Harper Reply Brief About How States Can Rein in Partisan Gerrymandering

Petitioners in Moore v. Harper argue that state supreme courts cannot apply state constitutional provisions limiting partisan gerrymandering to stop state legislatures from gerrymandering congressional districts. Doing so, they argue, would usurp the power of the legislature which “alone” has the power to “regulate” federal elections.

It’s this bizarre theory of free-floating legislative authority, the “independent” in independent state legislature theory being independent of the other bodies of state government like states courts. (Never mind that the Supreme Court in Smiley held that such plans can be subject to a gubernatorial veto).

In their reply brief, Petitioners respond to the argument that siding with them will lead to more partisan gerrymandering by writing the following:

Respondents also contend that enforcing the Elections Clause would prevent voters from responding to political gerrymandering. Non-State Br. 77–78. But States would retain a variety of means for dealing with partisan gerrymanders, including the gubernatorial veto, popular referenda, independent redistricting commissions, and appeals to Congress’s authority to make or alter state election regulations.

Such a bizarre argument. The state legislature may act independent of state courts and state constitutions, but not independent of governors, of the people acting through the initiative process, of independent redistricting commissions (presumably set up by the people acting through the initiative process) and Congress. Not so independent after all. Just independent of a state supreme court that has a view different from that of the state legislature on the scope of the state constitution’s protection of voting rights.

(Disclosure: I’ve filed this amicus brief siding with Respondents in this case.)

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