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.