In Moore v. Harper, SCOTUS Could Decide Who Gets The Final Say In A 2024 Election Dispute

The Supreme Court will hear oral arguments this week in the biggest sleeper case of its 2022-23 term.

The justices already have before them the blockbuster dispute of whether government-funded or -run colleges and universities can continue to use race in making admissions decisions, testing whether the court will live up to the Constitution’s promise of equal protection of the laws and that the government will treat its citizens as individuals without regard to race. But the Supreme Court also has before it a potentially earth-shaking case involving governmental structure in addition to individual rights.

Moore v. Harper asks the justices to decide whether a state court can impose its own map for congressional districts drawn after the decennial census. It will test whether the Supreme Court will honor the Constitution’s text, rather than past practice, with implications for the control not just over congressional districting (which helped Republicans win the House in the most recent midterm elections) but also the selection of presidential electors. If a true dispute arose over the results of the 2024 election, Moore v. Harper might provide the touchstone for a state legislative role in determining the winner.

What History Tells Us

The Constitution seems clear that only state legislatures can draw redistricting maps. Article I, Section 4 states that “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”

The elections clause permits (but does not require) states to create districts as a means of electing their members of the House of Representatives. Congress requires states to draw such districts, and it could even impose its own districts under its power to “make or alter” state laws governing federal elections.

Of course, redistricting creates the opportunity for partisan gerrymandering. But the practice is an established one. Politicians have drawn electoral districts for partisan advantage from the very beginnings of the republic and, indeed, within the colonial period. James Madison warned in the Constitutional Convention that state legislatures could manipulate districting for partisan purposes, and Madison himself was the target of a failed attempt in the Virginia Legislature to draw a district so as to prevent his election to the first Congress.

The word “gerrymandering” itself comes from an attack on Elbridge Gerry, a delegate to the Constitutional Convention who later served as vice president under Madison, for state senate districts drawn in Massachusetts while he was governor. One of the districts, critics said, resembled a salamander because of its long, sinuous shape: hence gerrymandering. In Rucho v. Common Cause (2019), the justices declared that their power of judicial review did not extend to gerrymandered maps.

Critics of gerrymandering have turned to other alternatives. Some states, such as California and Arizona, have transferred the power to draw districts to independent commissions, which the court mistakenly upheld in 2015.

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