After Trump’s 2020 election loss, his supporters and allies began their never-ending campaign to reverse the voting results. One argument advanced in support of that objective was that state legislatures– without any oversight from state courts– have exclusive authority to set the rules governing presidential and congressional elections. The argument isn’t new. It had been laying dormant on the floor of legal and political discussion rooms for nearly 15 years. After Trump’s defeat, however, desperate to undo the spoken will of the people, the Republican members of state legislatures embarked upon a plan. It required unpacking this “exclusive authority” argument yet again.
by Kevin Seraaj, J.D., M.Div., publisher, The Orlando Advocate
Article I, Section 4, Clause 1 of the Constitution (known as the Elections Clause) says: “The 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 choosing Senators.”
This language fuels the argument that the rules (“Regulations”) for setting the times, places and “manner” of holding elections belong to state legislatures first, and Congress secondarily, with no input or oversight by the courts. This is of course an absurd position to take as the courts by definition exist to oversee both the executive and legislative branches. It’s a little thing we Americans call “checks and balances.”
Over the years the Supreme Court has generally upheld state laws designed to ensure that elections are honest and fair. But Trump 2.0 has changed everything.
Historically, when state legislatures try to go beyond
protecting of the integrity of the election process, and instead act to disadvantage candidates or members of a particular party — the Court has felt obligated to act. These days, however, court watchers are largely convinced that the Supreme Court — otherwise known as the ‘Trump Court’ — will find ways to make the U.S. constitution say what the indicted former president needs it to say.
Increasingly viewed as the judicial arm of right wing ideologues– intellectually out of control, and without ethical constraints of any kind, the facts that cause the Court to be viewed in this light are not new and began long before Trump. The regular, permitted and almost expected on-going bribery of members of the Court by power brokers has been going on for years. The general public had no idea that the men and women who wear the black robes felt themselves to be above any accountability for undisclosed improprieties. Clarence and Ginny Thomas and their practice of receiving money from people with matters pending before the Court are only the tip of the proverbial iceberg.
On the heels of the 2020 decennial census, North Carolina’s General Assembly drafted a new federal congressional map objected to by several groups who called it partisan gerrymandering in violation of that state’s Constitution. While acknowledging that the claims of partisan gerrymandering may very well be outside the reach of federal courts, the State Supreme Court held that state courts, on the other hand, did in fact have the authority to consider those claims, saying the Federal Elections Clause does not give exclusive and independent authority to state legislatures to draw federal congressional maps.
The state Supreme Court had a 4-3 Democratic majority when it set aside the General Assembly’s new redistricting maps. It is unfortunate to even make mention of this Democrat vs Republican lineup because the law– at least among jurists– should be about interpreting the law and dispensing justice, instead of political pandering. But during the November 2022 elections, the make-up of the state court changed, and Republicans gained a 5-2 majority. So, in February 2023 the new Republican majority on the state’s high court decided to reconsider the prior court’s ruling, and subsequently reversed it, holding that under the state constitution, the court lacked the authority to override the (re)districting put in place by the state legislature.
Surprisingly, though, in a 6-3 decision written by Chief Justice Roberts, and joined in by Brett Kavanaugh, Amy Coney Barrett, Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson, the U.S. Supreme Court rejected the exclusive authority argument, saying “The Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review.”
Why is this important? Theoretically, it’s good news for blacks, who are most frequently the target of redistricting schemes designed to weaken the power of their votes. Blacks in Florida should be paying very close attention. Last year, Gov. Ron DeSantis took the very unusual step of proposing his own congressional map, of which CNN’s Steve Contorno said at the time: “Like previous maps submitted by DeSantis’ office, the latest offering would likely reduce the number of districts where Black voters are a plurality and would make it difficult for Democrats to win anywhere north of Orlando or outside major cities.”
He took the 5th Congressional District, occupied by black Democrat Al Lawson, and cut it up into 4 smaller districts. Each of those districts will likely elect white Republican lawmakers, giving the state four additional Republican seats in congress. It used to be some consolation that by voting, aggrieved citizens could still affect change via the political process. But after a circuit court judge said the map violated the state’s constitution because “it diminishes African Americans’ ability to elect candidates of their choice” and ordered a new configuration of districts in northern Florida, an appeals court disagreed. Next in line, the state supreme court, in a 4-1 decision, said it would not intervene, leaving the appeals court ruling in place.
As long as Ron DeSantis is in office, Black and brown people in Florida are in deep political trouble. There is a lot of ‘againstedness’ involved in the DeSantis anti-woke campaign. As bad as Trump is, DeSantis is much worse. This ruling offers some clarity into both the process and importance of democratic inclusion– and its relationship to the concept of “we, the people.” It may turn out be an aberration, but however temporary, the Court’s return to judicial normalcy is a necessary refocus on social rapprochement. The alternative, in these days and times, won’t be pretty.