Holder Sounds Alarm Against Extreme Republican Efforts to Absolve Checks and Balances Within State Governments
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Brooke Lillard
Lillard@redistrictingaction.org
Holder Sounds Alarm Against Extreme Republican Efforts to Absolve Checks and Balances Within State Governments
Washington, D.C. — Today, Eric Holder, the 82nd Attorney General of the United States, is sounding the alarm on Republican filings to the United States Supreme Court designed to give unchecked power to state legislatures by absolving any checks and balances within state governments.
“Across the country, Republicans are being held to account by their state judicial branches for their arrogant attempts to illegitimately draw their way to political power not earned from the voters,” said Eric H. Holder, Jr., the 82nd Attorney General of the United States. “It is truly remarkable that the Republican Party professes to be the party of states’ rights, but when it comes to our elections and redistricting they run to the U.S. Supreme Court to invalidate state court decisions, after they were caught breaking state laws or simply did not like a map adopted by a state supreme court. In their view, state legislatures should be allowed to act with impunity when it comes to redistricting specifically, and voting generally. Their willingness to do whatever it takes – even if it means ending our federalist system as we know it – to circumvent the will of the people is outrageous. These arguments are beyond the pale of our democratic norms.”
This week, North Carolina voters (the Harper plaintiffs in Harper v. Hall), supported by the National Redistricting Foundation (NRF), the 501(c)(3) affiliate of the National Redistricting Action Fund (NRAF), and Pennsylvania voters supported by the NRAF (the Carter respondents in Toth v. Chapman) submitted their respective opposition briefs to emergency stay applications filed in the Supreme Court of the United States by Republican applicants.
In Harper v. Hall, now styled as Moore v. Harper, North Carolina Republican applicants argue that the state court does not have the power to consider partisan gerrymandering cases. The applicants are asking the U.S. Supreme Court to not only overrule the state supreme court’s substantive decision declaring that partisan gerrymandering violates multiple provisions of the North Carolina Constitution, but also to reinstate the 2021 congressional map that was found to be an unconstitutional partisan gerrymander.
Meanwhile, Pennsylvania Republican applicants in Toth v. Chapman argue that the state court does not have the authority to adopt a congressional map when the state’s executive and legislative branches fail to timely enact a map. Instead, the applicants propose that all of Pennsylvania’s congressional elections should be conducted statewide – even though no state has ever conducted at-large congressional elections since redistricting became required after every census following Supreme Court cases in the 1960s.
If the Court rules in favor of the Republican applicants in these cases, it would undermine more than a century of precedent and wreak havoc on the American federalist system as we know it. The Court would be ignoring decades of precedent of state and federal courts producing new congressional maps when the state’s political branches are unable to do so in time for impending elections. These cases also threaten to nullify dozens of state constitutional provisions across the country, causing electoral chaos.
There is strong precedent against the claims filed by North Carolina and Pennsylvania Republicans:
The United States Supreme Court has frequently and clearly repudiated the idea that state courts cannot resolve legal challenges related to redistricting. Even some of the Supreme Court’s most conservative justices in the past have affirmed that federal courts should defer to state courts on redistricting, including Justice Antonin Scalia. For example, in Growe v. Emison (1993), Justice Scalia wrote for a unanimous Court: “The power of the judiciary of a State to require valid reapportionment or to formulate a valid redistricting plan has not only been recognized by this Court but appropriate action by the States in such cases has been specifically encouraged.” This clear sentiment – that state courts may adopt congressional maps when needed – was reaffirmed in Branch v. Smith (2003), when the Court made clear that a court drawing the map when the state’s political branches have reached impasse on redistricting has been the “consistent understanding of all courts [for] almost 40 years.”
And for more than a century, the Supreme Court has repeatedly held that nothing in the Elections Clause negates a state court’s authority to strike down a congressional redistricting plan if it violates the state’s constitution. In Rucho v. Common Cause (2019), the Court explained that “[p]rovisions in . . . state constitutions can provide standards and guidance for state courts to apply” when reviewing the legality of congressional maps. In Arizona State Legislature v. Arizona Independent Redistricting Commission (2015) – the case that challenged the authority of Arizona’s redistricting commission to draw the state’s congressional maps under the same reasoning – the Court held that “[n]othing in [the Elections] Clause instructs, nor has this Court ever held, that a state legislature may prescribe regulations on the time, place, and manner of holding federal elections in defiance of provisions of the State’s constitution.” These ideas are not new. Nearly a century ago, in Smiley v. Holm (1932), the Supreme Court stated that the Elections Clause does not “endow the Legislature of the state with power to enact laws in any manner other than that in which the Constitution of the state has provided,” which includes the ability of a co-equal branch of government to provide checks and balances.
These are only some examples of an extensive set of U.S. Supreme Court precedent that contradicts the extreme claims by North Carolina and Pennsylvania Republicans.
Click here to read the full response filed by NRF-supported North Carolina voters, and click here to read the full response by NRAF-supported Pennsylvania voters.
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