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What was Mike Pence supposed to do?
Attention is again focused on the Jan. 6, 2021, insurrection at the Capitol when the vice president didn’t do what then President Donald Trump wanted and stop counting the electoral votes that would make Joe Biden president.
Just how Trump wanted him to handle it was never clear. At least one Trump advisor suggested the Constitution gave the vice president the power simply to declare the winner, if he found enough defective votes, thus denying Biden the election. That was a bit of a reach, even for the person who proposed it.
If that went too far, some Republicans thought Pence should kick the matter back to the contested states, particularly to state legislatures. That theory rested on a constitutional provision that gives state legislatures the power to direct how presidential electors are chosen. That could mean the legislature would pick electors favorable to Trump despite a state’s popular vote for Biden.
Pence followed none of this dubious advice. But the belief that the Constitution gave state legislatures total, independent power to determine the outcome of federal elections has survived. It is now squarely before the U.S. Supreme Court.
The question survives, because it is part of the GOP playbook of voter suppression measures aimed at Democrats. The favored plays include making it difficult to register and vote, limiting voting periods and easily accessible polling places, restricting mail-in ballots and segregating Democrats into as few districts as possible.
Drawing district lines to segregate voters by race is illegal. But the Supreme Court will not rule against possible racial gerrymandering unless it can be shown that no other significant factor could have been the basis for the district outline. That’s a tough case to prove. Some southern states have managed to create a single congressional district to sweep in the state’s Black and presumably Democratic voters.
The Court will not rule at all on political gerrymandering, when a state draws congressional or state legislative district lines to pack as many members of one party into as few districts as possible. The Court will leave that issue to the individual states as allowed by the Constitution. That raises the question of who within a state has the power to decide.
The Constitution states that the “Manner of holding elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof…” Can the state legislature gerrymander as it wishes, unchecked by any other part of the government?
If so, a legislature could ignore the popular vote as well as the governor and the state supreme court. Because its powers are mentioned in the Constitution, the legislature would consider itself a federal agency, lifted out of state government when it creates congressional districts. That’s what North Carolina Republicans claim in the case now before the Supreme Court.
State legislatures cannot normally act outside of the limits of state constitutions. But a state supreme court decision in line with a state ban on political gerrymandering might raise a conflict with the federal Constitution. In that situation, the U.S. Supreme Court could overrule the state court.
Article I of the Constitution makes the president part of the legislative process, because Congress can make decisions only with the president’s consent or by overriding a president’s veto. State governors have a similar role. Despite the claims of the North Carolina Republicans, the Supreme Court long ago decided that governors could veto legislative districting.
The Court has already ruled that the people of Arizona, who mandated by referendum that a neutral districting commission should replace the legislature, exercised a legislative function allowed by the Framers.
For state legislatures to gain absolute power, the Court would have to reverse two previous rulings and strip state courts of their own constitutional jurisdiction over elections to federal office.
The Court’s decision might reveal how partisan it has become. If it rules for the Republicans, as some justices seem inclined to do, a state legislature under one party’s control at the moment the Court decides could always draw districts to keep that party dominant and in power. It would take a massive change in the electorate itself to redraw the lines.
If state legislatures are given total control over the design of congressional and legislative districts, they could similarly have unchecked power over who may cast electoral votes for president. The popular vote could be ignored, especially if the losing candidate claimed there had been voter fraud.
Such a Court ruling might easily lead to the warped legal view that state legislators, not the people, can decide who wins federal elections. It could also harm the Court’s already suffering reputation.
A Supreme Court decision for the North Carolina Republicans could end up requiring a Pence successor someday to do exactly what he refused to do.
