Why the Supreme Court should ponder Presidents’ Day and the first gerrymander

Presidents’ Day offers an opportunity to reflect on America’s founders. The Supreme Court would be wise to consider them as it considers the major voting rights case of our time, Moore v. Harper.

On Dec. 7, 2022, the Supreme Court heard oral arguments in Moore v. Harper, a case that originated from the legal fight over whether North Carolina’s Supreme Court has the power to invalidate the congressional map drawn by North Carolina’s Republican legislature. The North Carolina Supreme Court found that the map was a partisan gerrymander violating the state constitution, but Republican North Carolina Speaker of the House Tim Moore is arguing that the “independent state legislature theory” gives the legislature exclusive authority without checks and balances from the state Supreme Court. 

But first some critical historical context: While the manner of electing U.S. representatives is given to state legislatures, presumably including the power to gerrymander electoral districts, this power has never been without checks and balances from the state. Through their actions, our founders gave meaning to the passages of the U.S. Constitution entrusting powers to state legislatures.

Unsurprisingly, the word “gerrymander” is nearly as old as our country and comes from Elbridge Gerry, the Massachusetts governor who signed into law a partisan redistricting map for his state in 1812. Far from a run-of-mill governor, Gerry had signed the Declaration of Independence in 1776, played a leading role as a delegate to the Constitutional Convention in 1787, testified at the Massachusetts Ratifying Convention in 1788 and later became vice president of the United States.

However, at the time, the Massachusetts state legislature did not attempt to act alone in redistricting its state. Under the Massachusetts Constitution, its district map required the governor’s consent. A key founder with a national reputation on the eve of becoming vice president, Gerry thought so as well. State legislatures operated in this way then. They always had.

The earliest example of partisan districting occurred in the first congressional elections. Antifederalists controlled the Virginia state legislature in 1788 even though earlier that year, under the leadership of James Madison, the Virginia Ratifying Convention narrowly approved the U.S. Constitution.

Striking back at Madison, antifederalists in the Virginia House of Delegates crafted a congressional district map embedding Madison’s home in a hatchet-shaped and markedly antifederalist district, forcing the reticent campaigner to stump for votes county by county to eke out a narrow victory over antifederalist leader James Monroe. Under the state constitution, however, the Virginia House of Delegates did not impose this map alone — it required the approval of an upper quasi-executive body.

During this early national period, state legislatures acted in accord with their state constitutional powers in crafting electoral districts through passing statutes subject to all the constitutional constraints of lawmaking. Some states gave a veto power to governors; some had bicameral legislatures; some imposed judicial review. Checks and balances had become the norm, with those constitutional limits applied to drawing legislative maps.

The U.S. Constitution also expressly entrusts state legislatures with power over the manner of choosing electors. During the republic’s early years, some states opted to use some form of legislative appointment. Here, too, state legislatures acted within state constitutional frameworks.

For example, in the contested election of 1800 between John Adams and Thomas Jefferson, each party controlled one house of the state legislature in Pennsylvania, which had 15 electors. Given the tight race, those electors (if all went to one party) would likely decide the election. After much contention, the two houses compromised by awarding most of the electors to Jefferson’s party because that party controlled the governorship and Gov. Thomas McKean (a signer of the Declaration of Independence and leading figure at the state ratifying convention) needed to approve the election law.

As the outcome in Pennsylvania suggested, while the U.S. Constitution authorized state legislatures to determine the manner of choosing presidential electors, in the founding era, they did so in accord with state constitutional procedures. Indeed, by the initial election law in New Jersey, the governor and counsel chose presidential electors.

The lesson from the founding era is clear. The U.S. Constitution gives the authority to fix congressional election maps and to choose presidential electors to state legislatures, but those legislatures must operate within the bounds of their state constitutional authority. State legislatures are not independent institutions, but instead creatures of their duly adopted state constitutions.

Edward J. Larson is a Pulitzer Prize-winning legal historian and author of “American Inheritance: Liberty and Slavery in the Birth of a Nation, 1765-1795.”