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Missouri Secretary of State explains stance in controversial case

Jay Ashcroft
Posted at 3:04 PM, Sep 09, 2022
and last updated 2022-09-09 16:12:29-04

KANSAS CITY, Mo. — Missouri Secretary of State Jay Ashcroft weighed in on the hotly debated Moore v. Harper case that will determine whether redistricting power lies with state legislators or the courts.

Legal experts predict the ruling will have a significant impact on future elections, and commentators on all sides of the issue have raised concerns about gerrymandering.

The lawsuit was entered into the Supreme Court earlier this year by North Carolina Republicans, who argue an interpretation of the Constitution called the “independent state legislature theory” gives states the power to redistrict without the court’s say-so.

Ashcroft filed an amicus brief Sept. 2, which he said does not support either party in the lawsuit on the basis that the case incorrectly draws from the Elections Clause for guidance.

“You guys can argue about independent state legislature all you want … but the Elections Clause doesn’t talk about redistricting,” Ashcroft said.

However, Ashcroft said he still does not believe the federal government has the right to redistrict.

Citing the 10th Amendment, not the Elections Clause, Ashcroft believes the amendment denotes redistricting power to states. It reads: “The powers not delegated to the United States or by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

“Since the Constitution never gives the power of redistricting to the federal government because the Elections Clause doesn’t, the states are in charge of redistricting,” Ashcroft said.

The secretary of state and Missouri attorney said giving redistricting power to Congress opens the door to “racist gerrymandering.”

And since the 14th Amendment only applies to state government, Ashcroft said an improper ruling in the suit could open the door to discrimination.

“In Missouri, we want our state legislature to do our congressional redistricting, and we want citizens commissions to do our state redistricting,” he said. “We never want a legislative body to be in charge of redistricting itself.”

Several public officials do not share Ashcroft’s interpretation, including the Conference of Chief Justices, of which Missouri Chief Justice Paul Wilson is part.

The group filed a brief Tuesday that, like Ashcroft’s, does not claim to support either side in the case. But the conference concluded that state courts and constitutions have the right to review district maps.

Like the chief justices, University of Missouri-Kansas City law professor Daniel Weddle is concerned the court will rule in favor of Moore.

“Courts are an essential check on legislative and executive power,” Weddle said. “When those authorities use that power in an unconstitutional way … I really see the independent state legislative theory as an insidious attack on judicial checks.”

Weddle predicts the Supreme Court will recognize independent state legislative theory, leaving some citizens without a voice. The legislature could then seal itself in power for 10 years until redistricting occurs.

“If you’re in a minority state, you’re going to be disenfranchised,” he said. “I don’t care what party you’re in, that is an exceptionally unhealthy situation for democracy.”