Missouri Secretary of State Jay Ashcroft wants to be clear that his amicus brief in a high-profile U.S. Supreme Court case is not an endorsement of the so-called “independent state legislature” doctrine.
He’s not denouncing it, either.
Instead, Ashcroft is floating a theory of his own: That Congressional redistricting is a duty reserved solely for the states under the 10th Amendment, with no role whatsoever for Congress.
Ashcroft says many, including The Missouri Independent, initially misinterpreted his position when he filed the amicus brief.
His brief dovetails with the issues at the heart of the Supreme Court case — whether state legislatures alone have authority over redistricting. But Ashcroft says his take is more nuanced.
The state legislature controls redistricting in Missouri, Ashcroft said, but that doesn’t mean it has to in every state.
“It’s reserved to the states, and the states themselves, in their constitution,” he said, “and laws should define it. So it could be different in Missouri than Kansas than Oklahoma than Nebraska.”
Ashcroft’s theory has its detractors.
Rick Hasen, an election law expert from UCLA, called Ashcroft’s amicus brief “bonkers” and “convoluted.”
Most of the briefs filed in the Supreme Court case “assume that Congress could override state legislatures on setting rules for congressional redistricting,” Hasen said.
But Missouri contends Congress can’t say anything about how states redistrict for congressional elections.
“We need to keep the federal government out of Missouri elections,” Ashcroft said.
Democrats in Congress have proposed legislation to set uniform rules for redistricting and safeguards against gerrymandering, such as bipartisan commissions. If the Supreme Court were to adopt Ashcroft’s reasoning, those reforms would be unconstitutional.
“So the state legislature can engage in whatever partisan gerrymandering it wants,” Hasen said, “but Congress can do nothing.”
Hasen believes Ashcroft’s position ignores Congress’ powers to act to regulate redistricting, “such as enforcing the 14th and 15th amendments.”
The case inspiring this debate stems from North Carolina, where Republicans are asking the nation’s highest court to restore a Congressional map that was rejected as a partisan gerrymander by that state’s Supreme Court.
The North Carolina Republicans argue the state court had no authority to throw out the map under the so-called independent state legislature doctrine. The case focused on the U.S. Constitution’s Elections Clause, which says: “The times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof.”
Proponents of the independent state legislature doctrine argue the Election Clause gives legislatures sole responsibility for drawing congressional districts — and state courts have no role to play.
Ashcroft contends redistricting doesn’t fall under the Elections Clause at all.
Drawing new congressional districts doesn’t fall under “time, places and manner,” Ashcroft says. Therefore, redistricting is a power of the states under Tenth Amendment, which says “powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”
“I’m not saying that means the legislature controls redistricting in every state,” Ashcroft said. “We’re saying that whatever the state Constitution says should control how that state does congressional redistricting since it’s through the 10th Amendment.”
In Missouri, the state Constitution grants that power to the legislature, with the governor able to veto. The only guidelines listed are that districts must be “composed of contiguous territory as compact and as nearly equal in population as may be.”
The lack of details stands in contrast to how the Constitution lays out the process for redrawing the state’s 197 legislative districts. It gives the authority to bipartisan citizen commission and lays out criteria, such as specifying the process is governed by the Voting Rights Act of 1965.
It also lays out how a citizen can challenge the legislative redistricting maps in court.
Critics worry Ashcroft’s theory means few checks on the legislature’s power and could lead to partisan gerrymandering of Missouri’s congressional maps.
Federal courts are not an option to combat partisan gerrymander, after a 2019 U.S. Supreme Court decision.
It’s unclear if partisan gerrymandering would be reviewable by state courts in Missouri, said Michael Wolff, a former chief justice of the Missouri Supreme Court.
“The question of partisan gerrymandering might be raised in a challenge that the districts are not compact,” Wolff said, such as challenging a district that was “strung out and arranged to pack most of the [Democrats] into one district.”
But these sorts of challenges, Wolff said, are difficult.
“Courts realize that the majority makes choices that are at least informed by their partisan interests,” he said, “and it is hard to figure what the standard should be in evaluating whether the partisan effect was so extreme as to create districts that are not compact enough.”
Jesus Osete, general counsel for the Secretary of State’s office, said there are plenty of checks on legislative power, pointing specifically to the due process clause in Missouri’s Constitution. He said there are also principles in the 14th and 15th Amendments of the U.S. Constitution that would apply to state legislative powers.
“This doesn’t give legislators free rein to do whatever they want,” Osete said. “There are limits.”
As to the question of whether state courts could review a map considered a partisan gerrymander, Ashcroft said if Missourians were concerned that the legislature was engaging in partisan gerrymandering they could turn to the initiative petition process to change the state Constitution and outlaw it.
“The state could have restrictions on partisan gerrymandering if the state wants to,” Ashcroft said. “The people would have to make that decision. The crux is, it goes back to the people. The people are supposed to make that decision.”
This article by Jason Hancock is published by permission of The Missouri Independent.