As a result of the most recent census, Pennsylvania will lose one seat in the U.S. House of Representatives. Thus, Pennsylvania’s map of congressional districts is being redrawn to reflect the change from eighteen districts to only seventeen. Just days ago, the Pennsylvania Supreme Court chose the map that will govern the 2022 election — perhaps for the next ten years of elections.

History is repeating itself. Several years ago, the Pennsylvania Supreme Court did the same thing when it chose the map to be used after it had declared the previous map of congressional districts unconstitutional under the Pennsylvania Constitution, despite that map having been approved by both the state Legislature and governor. The judicial branch of the state government effectively overruled both the legislative and executive branches.

It should be noted that the U.S. Constitution assigns the task of making decisions regarding the election of the members of the US Congress to the state legislatures. The members of the U.S. House of Representatives are not state officials. Their positions and authority are not created under state constitutions or state law.  They are not paid by the state. They are federal officials governed by the U.S. Constitution, which states (Art. 1, § 4, cl. 1):

“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”

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Note that the provision says “by the Legislature.” It does not say “by legislation” or “by law.” That is an important distinction. The “Legislature” is a government body. “Legislation,” on the other hand, is either the process for making law or the result of that process, that is, law itself. If the Constitution said “by legislation” or “by law,” it would require that the state constitution’s process for making law be followed. Ordinarily, that would have required approval both in the state legislature and by the governor. By using the words “the Legislature,” the Constitution is not referring to a process but rather to the legislative branch of government. The use of the definite article “the” before “Legislature” supports the notion that it is referring to a government body and not a process.

The authority given to Congress to “make or alter” what the state legislature has provided, however, does require Congress to use the legislative process. The relevant Constitutional provision says that Congress may, “by Law,” make or alter the state legislature’s regulations. 

Note that Congress is given the authority to “make or alter … Regulations,” not legislation. If a state legislature has enacted laws through the legislative process, they would not be called “Regulations.” 

You don’t have to be a law school graduate to know our federal and state governments are composed of three branches: legislative, executive, and judicial. That separation of governmental functions is meant to guard the American people against dictatorship. No one branch of government has the authority to make the law, enforce the law, and sit in judgment of alleged violations of that law. 

The Pennsylvania Supreme Court is not the state Legislature. It is part of the judicial branch of the government. The Pennsylvania General Assembly is the legislative branch.

I doubt anyone would argue that the word “President” or the words “Supreme Court” in the Constitution require interpretation. Why, then, should the words “the Legislature” be interpreted to mean something other than the legislative branch of government?

Surely, the framers of our Constitution would have to have been extremely careless in their use of language in the crafting of this particular provision of the Constitution if they meant to allow the executive and judicial branches of government to prescribe the rules for electing Congressional representatives.

The U.S. Constitution assigns the task of making election-related decisions for federal offices to state legislatures.

Unfortunately, in Smiley v. Holm (1932), the U.S. Supreme Court rejected the arguments I have put forth. I believe that case was wrongly decided and should be overturned.

If Smiley is not overturned, then the judicial branch of government can reject the congressional districts drawn by a state legislature, even if approved by the state’s governor, and draw its own map, which is what happened in Pennsylvania several years ago.  Again, just a few days ago, just four out of the seven state supreme court justices chose the new congressional districts. Instead of the state Legislature choosing the new map, just four justices did.

It is doubtful that the framers of our Constitution would have approved of just four individuals choosing the new map rather than the state Legislature.

I believe the framers gave that authority to “the Legislature,” and to “the Legislature” alone.

Howard Lurie is an Emeritus Professor of Law, Charles Widger School of Law, Villanova University.