Ashcroft pitches 10th Amendment redistricting theory to high court

Jay Aschcroft

As the U.S. Supreme Court prepares to hear a high-profile case that could affect the ability of state courts to hear redistricting cases, Missouri Secretary of State Jay Ashcroft says the numerous groups weighing in on the underlying legal theory are missing the point.

Ashcroft filed an amicus brief on Sept. 2 in a case that asks the high court to examine the so-called “independent state legislature” doctrine and decide whether the North Carolina Supreme Court was right to have thrown out a map drawn by the state legislature that it found violated the state’s constitution by gerrymandering districts in favor of Republicans.

Article 1, section 4 of the U.S. Constitution, better known as the Elections Clause, says the “Times, Places and Manner of holding Elections” for Congress “shall be prescribed in each State by the Legislature thereof.” The petitioners in the North Carolina case argue that only a state’s “legislature” can regulate federal elections, leaving state courts no authority to “nullify” such a map based on “vague state constitutional provisions.” Those defending the court say such a ruling would insulate legislatures from any check on their power and strip courts of the ability to enforce constitutional protections. 

Implicit in the question is that the once-every-decade process of redrawing congressional district lines counts as a “manner” of holding elections. Ashcroft, however, says that assumption is wrong — and dangerous.

“It’s not that I was really trying to get involved in what happens in North Carolina,” Ashcroft said in an interview. “But I think that if the Supreme Court erroneously holds — even though they’d probably just gloss over it in doing so — that ‘times, places and manner’ includes redistricting, I believe that hurts the people of the state of Missouri.”

The brief, which Ashcroft wrote with his office’s general counsel, Jesus Osete, argues that a plain reading of the Elections Clause’s text limits its application to the administration of elections — when, where and how they are held. Drawing the lines for the districts whose representatives will be subject to those elections, he argues, doesn’t fit.

Instead, Ashcroft says redistricting is a state power reserved by the Constitution’s 10th Amendment. According to his argument, that not only fits the framer’s intent but also protects states from congressional interference, as the Elections Clause also says that “the Congress may at any time by Law make or alter such Regulations.”

During Missouri’s recent bout of redistricting, Ashcroft was a staunch though ultimately disappointed supporter of a 7-1 map — that is, a map with seven Republican-leaning districts and one that leans Democrat. (The actual map lawmakers passed is expected to be 6-2.) 

But Ashcroft says the Elections Clause’s sweeping language could give Congress the power to revise that map to have an even partisan split.

“If Congress can ‘make or alter’ state maps, can it do so for purely partisan reasons?” he wrote. “If so, are there any limits to Congress’ power here? If no limits, then isn’t this the kind of ‘omnipotent’ Congress the ratifying public feared?”

It’s not clear how Congress could engineer such a Missouri-specific outcome, though Ashcroft’s argument also could be used to challenge the ability of Congress to set nationwide rules for redistricting that would limit lawmakers’ discretion.

Ashcroft’s theory doesn’t appear to have garnered support from the numerous groups that filed amicus briefs supporting or opposing the North Carolina case. The petitioner’s brief itself argues that, because federal offices are created by the Constitution, any role that states have in the process must be delegated to them.

“Unlike ordinary state legislation, regulating elections to federal office is a power governed, defined, and limited by the federal Constitution,” the group of Republican lawmakers bringing the challenge wrote.

The argument also runs counter to language in several prior U.S. Supreme Court rulings, including Rucho v. Common Cause, a case decided just three years ago that held that federal courts cannot adjudicate claims of partisan gerrymandering. (Ashcroft’s brief acknowledges those cases but said they made “passing statements” without directly addressing whether redistricting is a “manner” of holding elections.)

Rick Hasen, a professor and election law expert at UCLA School of Law, wrote in a blog post that Ashcroft’s brief was “bonkers,” reading it to mean that Congress can’t say anything about redistricting — including its existing requirement for single member districts and its protections for minority voting rights.

Ashcroft says that’s a misreading of his brief, as it explicitly says those congressional restrictions are permissible. In his view, Congress’ authority to pass such laws comes from the 14th Amendment, not by regulating the “manner” of elections. In other words, Congress can regulate redistricting, he says, but its power to do so must come from somewhere other than the Elections Clause.

“I’m not some wacko that’s saying the Supremacy Clause doesn’t apply,” Ashcroft said. “But what I am saying is, the constitution and what it says matters.”

Ashcroft’s brief urges the Supreme Court to reverse the North Carolina court’s ruling, approvingly citing Pearson v. Koster, a 2012 Missouri Supreme Court opinion that upheld the Missouri legislature’s map. The court there said redistricting is “predominately a political question” that is “best left to political leaders, not judges.”

The challenge in that case, however, involved whether the map that lawmakers drew after the 2010 census met the Missouri Constitution’s requirement that the districts be compact “as may be.” Ashcroft said the people of each state, as the ultimate arbiters of redistricting power, are free to put such requirements in their constitutions.

“States can clearly have restrictions in their state constitutions that would enable their state courts to be involved,” he said. “Having said that, federal courts are still going to be involved, because the Constitution didn’t end with the first 10 amendments.”

The case is Moore v. Harper, 21-1271.