WASHINGTON – The Supreme Court on Thursday announced it will hear a case that could radically reform how federal elections are conducted by giving state legislators independent power, not subject to review by state courts, to draft election rules in violation of state constitutions.
The case has the potential to affect many aspects of the 2024 election, including by giving judges the power to influence the presidential race when state courts interpret their constitutions to require changes to state election laws.
By taking up the case, the court could overthrow almost every facet of the U.S. election process, enabling state lawmakers to draft new federal election rules, regulations and districts with little control over handover, and possibly a chaotic system with different rules and voting rights to create suitability for presidential elections.
“The Supreme Court’s decision will be hugely significant for presidential elections, congressional elections and congressional district,” said J. Michael Luttig, a former judge of the Federal Court of Appeal. “And therefore, for American democracy.”
Protection against partisan gerrymandering instituted by the state courts may essentially disappear. The ability to challenge new state-level voting laws can be reduced. And the theory underlying the case could open the door for state lawmakers to send their own voter list.
Currently, Republicans have complete control over 30 state legislatures in the country, according to the National Conference of State Legislators, and were the force behind a spate of new voting restrictions passed last year. And Republican lawmakers in major battlefield states like Wisconsin, Pennsylvania, North Carolina and Texas have used their control over redistribution to effectively lock in power for a decade.
Democrats, in turn, control only 17 state legislatures.
The case is about a ballot paper signed by the North Carolina legislature that was rejected by the state Supreme Court as a biased rhymer. Republicans who tried to restore the legislative card argued that the state court was powerless to act under the so-called independent state legislature doctrine.
The doctrine is based on a reading of two similar provisions of the US Constitution. The one in question in the North Carolina case, the Election Clause, states: “The times, places and manner in which elections for senators and representatives are held shall be prescribed by each state legislature.”
This means, North Carolina Republicans argued, that the state legislature has sole responsibility among state institutions to sign congressional districts and that state courts have no role to play.
The North Carolina Supreme Court rejected the argument that it was not entitled to review the actions of the state legislature, saying that it would be “repulsive to the sovereignty of states, the authority of state constitutions, and the independence of state courts, and would produce. absurd and dangerous consequences. “
In an earlier meeting with the case in March, when the challengers unsuccessfully sought first aid, three members of the U.S. Supreme Court said they would have granted the application.
“This case raises an extremely important and recurring question about constitutional law, namely the scope of a state court’s authority to reject rules passed by a state legislature for use in conducting federal elections,” Judge Samuel A. Alito Jr. written, with Judges Clarence Thomas and Neil M. Gorsuch.
Judge Brett M. Kavanaugh agreed that the question was important. “The issue will almost certainly continue to arise until the court finally resolves it,” he wrote.
But the court must consider it in an orderly manner, he wrote, outside the context of an impending election. He wrote that the court should grant a petition to review the merits “in an appropriate case – whether in this case from North Carolina or in a similar case from another state.”
The court now has the petition in the North Carolina case, Moore v. Harper, no. 21-1271, and it will hear arguments in its next term, which begins in October.
Some precedents of the U.S. Supreme Court tend to undermine the independent doctrine of state law.
When the court closed the doors of federal courts for claims of partisan gerrymandering in Rucho v. General case in 2019, Chief Justice John G. Roberts Jr., who wrote for the five most conservative members of the court, said state courts can continue to hear such cases – including in the context of congressional redistribution.
Attorneys defending the North Carolina Supreme Court’s ruling in the new case said it was a weak tool to resolve the scope of the independent state legislature doctrine, as the legislature itself authorized state courts to review redistribution legislation.
During the recent redistribution cycle, state courts in North Carolina, Ohio, and New York have rejected newly signed maps as biased rhyme-makers. In 2018, the Pennsylvania Supreme Court rejected Republican-drawn congressional districts.
But should the Supreme Court embrace the doctrine, “it would completely eliminate the opportunity to set aside redistribution cards based on the statement that it’s kind of a biased rhymer,” said David Rivkin, a federal constitutional expert in the Reagan served. and George HW Bush administrations and supported the independent state legislature doctrine.
It will also leave few remaining roads through the courts to challenge congressional cards as unconstitutional. Partisan gerrymandering would be essentially legal, and a racial gerrymander would be the only way to address a challenge.
Accepting the doctrine could also eventually destroy independent redistributive commissions set up by voters through a ballot initiative, as in Michigan and Arizona, and limit their scope to state legislative districts only.
But a ruling that favors the independent state legislature has implications that could go far beyond congressional cards. Such a decision, legal experts say, could limit a state court’s ability to repeal any new voting laws regarding federal elections, and could limit its ability to make changes on election day, such as extending voting walls at a venue that opened late. has due to bad weather or technical problems.
“I just can not overemphasize how consequent, how radical and consequent it can be,” said Wendy Weiser, vice president of democracy at the Brennan Center for Justice. “Essentially, no one but Congress will be allowed to curb some of the abuses of state legislators.”
The decision to hear the case comes as Republican-led state lawmakers across the country have sought to deprive voters of more control over the administration of elections from impartial election officials and state secretaries. In Georgia, for example, a law passed last year stripped the secretary of state of significant power, including as chairman of the State Electoral Council.
Such attempts to take more partisan control over the election administration have led some suffrage organizations to worry that state lawmakers are moving to take more extreme steps in elections that do not go their way, similar to plans put forward by former President Donald J. Trump’s legal team. days of his presidency.
“The nightmare scenario,” the Brennan Center wrote in June, “is that a lawmaker, dissatisfied with how an election official on the ground interpreted her state’s election laws, would cite the theory as a pretext for refusing the results of a presidential election and instead choose his own electoral roll. ”
Legal experts note that there are federal constitutional controls that will prevent a legislature from simply declaring after an election that it will ignore the popular vote and send an alternative list of voters. But should the legislature pass a law before an election, for example, which sets the parameters by which a legislature can take over an election and send its menu, it can be maintained under the independent state legislature doctrine.
“If this theory is embraced, red state legislators will be smart, and they’re going to put these things in place by 2024,” said Vikram D. Amar, dean of the University of Illinois School of Law. “So the rules are in place for them to do what they want.”