U.S. Supreme Court Chief Justice John G. Roberts, Jr. quoted Professor Michael T. Morley of Barry University’s Dwayne O. Andreas School of Law in his dissenting opinion, written on behalf of four Justices, from a recent Supreme Court ruling concerning states’ power over congressional redistricting.
“It is gratifying to know that the Court had read and seriously considered the points made in my Article,” Professor Morley said. “Barry Law School, and particularly Dean Leticia M. Diaz, greatly values and supports its faculty’s scholarship, and the Chief Justice’s inclusion of a quote from my article in his opinion confirms the importance and potential impact of our work.” The cited portion of Professor Morley’s article surveyed the meaning of the term “legislature” as it appeared in the constitutions of the original thirteen states during the Founding Era.
The Court’s 5-4 ruling in Arizona State Legislature v. Arizona Independent Redistricting Commission upheld an Arizona state constitutional provision granting the power to draw congressional district boundaries to a nonpartisan independent commission. In his article and amicus curiae brief to the Court, Professor Morley argued that the Elections Clause of the U.S. Constitution allows only legislatures, and not entities such as independent commissions, to draw congressional district boundaries.
“The word legislature refers to a single body within each state comprised of elected officials that periodically convenes and exercises general lawmaking authority within the state.” Professor Morley said. “The U.S. Constitution grants power to regulate federal elections exclusively to state legislatures, and it is therefore unconstitutional for states to allow other entities, such as independent commissions, to redraw their congressional districts. This decision authorizes a tremendous shift in power away from elected officials to independent commissions.”
States are required to redraw maps for congressional districts to account for population changes once every decade, based on the results of the federal census. Thirteen states currently utilize independent redistricting commissions as a way to nullify partisan influence over that process.
Professor Morley states that the decision is not a clear-cut win for either liberals or conservatives, because both Democrat- and Republican-controlled legislatures have seen their authority to redraw congressional districts shifted to ostensibly nonpartisan independent commissions. He believes, however, that the ruling makes it easier for states to change the way in which electoral votes in presidential elections are allocated among candidates. In all but two states, electoral votes are granted to presidential candidates on a winner-take-all basis. Because the Court’s ruling today allows entities other than legislatures to regulate federal elections, voters may use the initiative process to require states to award electoral votes on a district-by-district basis, like Nebraska and Maine do, even if a state’s institutional legislature would refuse to enact such a measure. Such a change would allow Republican candidates to realistically campaign for a portion of the electoral votes in states like California.
Professor Morley has successfully argued in state and federal appellate courts across the country; represented several political parties, federal candidates, and voters in election and campaign finance lawsuits; and was counsel of record in the U.S. Supreme Court for Shaun McCutcheon in the landmark First Amendment case McCutcheon v. FEC. Professor Morley's work has been published in numerous academic journals, including the Cardozo Law Review and University of Pennsylvania Journal of Constitutional Law, and while a student he published several pieces in the Yale Law Journal and Yale Law & Policy Review.