The Constitution has had an Elections Clause since it first went into effect in 1789, but the Supreme Court has rarely given an interpretation of its meaning. But what the Supreme Court has said creates a dilemma for the Justices as they decide soon what to do about the claim that Pennsylvania’s state legislature engaged in partisan gerrymandering when it drew up election districts for choosing the state’s 18 members of the U.S. House of Representatives.
Republican legislative leaders in the state have asked the Justices to put on hold, and then review, a decision earlier this month by the state Supreme Court that the 2011 congressional map was a partisan-driven effort and that it violates the state constitution. The voters and political organizations that won the case in the state’s highest court have been told to file by Friday a reply to the request for a postponement of the ruling at issue.
The state GOP leaders’ first hurdle will be to persuade five of the nine Justices to grant a postponement. But an even bigger hurdle is to persuade the Justices that the Supreme Court should get involved in second-guessing the state court’s interpretation of its own constitution.
Ordinarily, a state’s own courts have the last word on the meaning of their state’s basic document, and ordinarily the Supreme Court will respect that. But when the federal Constitution’s Elections Clause enters into the discussion, that ordinary deference may not cause the Justices to hold back. And that creates a constitutional dilemma for the Justices.
On the one hand, the Supreme Court has said previously that writing the state laws that control elections – including elections of members of Congress – is a task for the state legislature, specifically handed to those lawmakers by the Constitution as a delegation of the power that otherwise would be exercised by Congress. On the other hand, it has recognized – but not fully clarified — that state courts have power over what the legislature does about rules for those elections.
The Pennsylvania GOP lawmakers actually do not see any dilemma. They have argued in state courts and now are arguing in the Supreme Court that the Elections Clause gives the line-drawing power over election districts to the body that makes state laws – the legislature – and since the state Supreme Court does not make laws, it has no role to play in drawing maps.
But in order for the Justices to rule that way, they would have to tell the state Supreme Court that it cannot enforce its state constitution against the legislature’s election maps no matter how seriously they contradict rights guaranteed by the state constitution.
This very likely is a dilemma of the Justices’ own making, simply because they have not said enough about what the Elections Clause means.
“The Elections Clause” is actually a misnomer; there are two provisions of Article I – the article that defines Congress and its powers – that define the power to elect members of the U.S. House of Representatives.
Section 2 says that “the House of Representatives shall be composed of members chosen every second year by the people of the several states….” That section also limits who may vote for congressional candidates: the citizens who are allowed to vote for the lower house of the state legislature, the one with the most members. (Challengers who claim a districting map is a partisan gerrymander argue that such a map interferes with the Section 2 right of “the people,” rather than a dominant political party, to control election outcomes. That is one of the issues in the Pennsylvania congressional districting case, as in any case involving a claim of partisan gerrymander that violates the Elections Clause.)
Section 4, which is often mistakenly thought of as the only Elections Clause, hands to the states and, in particular, to their state legislatures the task of prescribing “the times, places and manner of holding elections” for the House of Representatives. It adds – and this was something the Founders insisted upon – that Congress “may at any time by law make or alter” the rules written by the state legislatures for House elections. (A clear example of Congress’ choice to override state election rules is the Voting Rights Act of 1965, protecting minority voters from being denied equality at the polls.)
The Supreme Court has ruled plainly that the task assigned to state legislatures by Section 4 is not a power the states have as sovereign entities, but a task handed down to them to act in place of Congress, subject to congressional veto or alteration.
And the Supreme Court also has ruled just as plainly that the powers handed to the state legislatures are only to cover the procedures of elections: where the polling places will be, what times the polling places will be open, how to draw up the ballots, and – of course – how to draw the election district boundaries (a task that each legislature confronts every ten years after a new federal census shows whether and how populations of states have grown or declined, or shifted).
But, while the Supreme Court has said that the task given to legislatures to draw election district maps is a legislative one, it has also specified that what it meant by that is how the state’s own constitution sorts out the lawmaking power, and – presumably — its limits.
This is the way the Justices put it in the 1932 decision in Smiley v. Holm: “We find no suggestion in the [Elections Clause] of an attempt to endow the legislature of the state with power to enact laws in any manner other than that in which the constitution of the state had provided that laws shall be enacted.”
While that comment may seem like an embrace of the idea that only the legislature is to be involved in drawing congressional district boundaries, its reference to the constitution of the state raises the distinct possibility that, if the state’s basic document curbs legislative power, the legislature must obey such a limit.
And in other cases where the Justices have ruled on disputes under the Elections Clause, it has also said – without a great deal of specificity – that the state courts do have a role to play in the election process, and it has also said that the people of the state can even take the task of drawing election districts away from the legislature and hand it to an independent, non-partisan commission, as a few states have done.
The Pennsylvania Supreme Court, in its ruling striking down the 2011 map drawn for the state’s 18 House seats as a partisan gerrymander, apparently relied on the protections the state’s constitution gives to the voters of the state in elections in general. Used in three elections since 2011, the map each time led to victories for the Republican candidates for 13 seats to five for the Democrats, even though the statewide vote for the House races as a whole was about evenly split.)
The majority (in the 5-2 decision) decided that the map “clearly, plainly and palpably” violates the state constitution. However, it struck down the map without saying just what the constitutional violation was. It has promised an opinion later that would explain.
It may not matter to the Justices just what the constitutional rationale was for striking down the 2011 map, if the Justices believe that the state court undoubtedly had the authority to apply any limitation within the state constitution to the legislature’s plan. They do not need to know the specific violation that occurred, in order to decide whether the state court was free – under the Elections Clause – to block the use of the map, so long as they did so in using the power of judicial review given to it by the state constitution.
At the same time, the Justices are almost always troubled when a lower court, including a state court, changes the rules of an election contest when an election is imminent. In Pennsylvania, deadlines are already arriving for candidates to run for the House in the scheduled May 18 primary.
If the Justices were persuaded that the Elections Clause – Section 4, that is – protects the prerogative of the legislature to draw the congressional map without second-guessing by the state court, they no doubt would not only put the state court decision on hold but also grant review of the state court decision, using the Elections Clause as the guide.
Could the Justices find a way to rule for the legislature without sacrificing judicial review at the state level in Pennsylvania? The few past precedents issued by the Supreme Court on the scope of Section 4 do not appear to suggest such a way, making the dilemma the Justices now face even more perplexing.

(NOTE: This post appeared earlier today at Constitution Daily, the blog of the National Constitution Center in Philadelphia.)