WASHINGTON – The Supreme Court announced on Thursday that it will consider a case that could radically change the way federal elections are conducted by giving state legislatures independent powers that are not subject to review by state courts to determine electoral rules contrary to state constitutions.
The case has the potential to affect many aspects of the 2024 election, including by empowering judges to influence the presidential race when state courts interpret their constitution to demand changes to state election laws.
By dealing with the case, the court could change almost every aspect of the U.S. election process, allowing state legislatures to set new rules, regulations, and constituencies for federal elections with few checks against overruns, and potentially creating a chaotic system with different rules. and voting right in presidential elections.
“The decision of the Supreme Court will be extremely important for the presidential election, the congressional election and the district districts of Congress,” said J. Michael Lutig, a former judge at the Federal Court of Appeal. “And therefore for American democracy.”
The defenses against guerrilla fraud established by state courts could essentially disappear. The possibility of challenging new laws for state-level voting can be reduced. And the theory behind the case could open the door for state legislatures to send their own ballots.
It’s one thing to agree to a lawsuit, of course, it’s another to rule on it. But four judges have already expressed at least conditional support for the doctrine, deciding to accept it more than plausibly. The court is likely to hear arguments in the fall and rule next year.
Republicans currently have full control of the state’s 30 state legislatures, according to the National Conference of State Legislators, and were the force behind a wave of new voting restrictions passed last year. And Republican legislatures in key battlefield states such as Wisconsin, Pennsylvania, North Carolina and Texas have used their redistribution controls to effectively retain power for a decade.
Democrats, for their part, control only 17 U.S. legislatures.
The case concerns a voting card drawn up by the North Carolina legislature, which was rejected as a guerrilla hero by the state’s Supreme Court. Republicans seeking to restore the legislative map argue that the state court is powerless to act according to the so-called doctrine of the independent state legislature.
The doctrine is based on a reading of two similar provisions of the US Constitution. The Electoral Clause in question in the case of North Carolina states: “The time, place and manner of the conduct of elections for senators and representatives shall be determined in each state by its legislature.”
This means, North Carolina Republicans say, that the state legislature has the sole responsibility among state institutions to form congressional districts, and that state courts have no role to play.
The North Carolina Supreme Court rejected the argument that it had no right to review the actions of the state legislature, saying it would be “contrary to state sovereignty, the authority of state constitutions and the independence of state courts, and would lead to absurdity and dangerous consequences.” . “
In an earlier meeting with the case in March, when the applicants unsuccessfully sought emergency help, three members of the US Supreme Court said they would grant the request.
“This case is an extremely important and recurring issue of constitutional law, namely the extent of the power of the state court to reject rules adopted by the state legislature for use in federal elections,” wrote Judge Samuel A. Alito. Jr., joined by Judges Clarence Thomas and Neil M. Gorsuch.
Judge Brett M. Cavanaugh agreed that the issue was important. “The problem is almost certain to continue until the court finally decides,” he wrote.
But the court must consider it in an orderly manner, he wrote, outside the context of the upcoming elections. He wrote that the court must uphold a petition for review on the merits “in an appropriate case – either in this case from North Carolina, or in a similar case from another state.”
The court has now upheld the petition in the North Carolina case, Moore v. Harper, No. 21-1271 and will hear the arguments in his next term, which begins in October.
Some US Supreme Court precedents tend to undermine the doctrine of the independent state legislature.
When the court closed the doors of the federal courts for guerrilla fraud claims in the case of Rucho v. Common Cause in 2019, Chief Justice John G. Roberts Jr., writing for the five most conservative members of the court, said state courts could continue to hear such cases – including in the context of a redistribution of Congress.
Lawyers defending the North Carolina Supreme Court’s ruling in the new case said it was a poor tool for resolving the scope of the independent state legislature’s doctrine, as the legislature itself has authorized state courts to review redistribution laws.
During the last rearrangement cycle, state courts in North Carolina, Ohio and New York rejected the newly drawn maps as guerrilla germanders. In 2018, the Pennsylvania Supreme Court rejected Republican-elected counties in Congress.
But if the Supreme Court accepted the doctrine, “it would completely eliminate the possibility of setting aside maps to redirect the area based on the assumption that they are some kind of guerrilla hero,” said David Rivkin, a federal constitutional law expert who served in the Reagan. and the administrations of George W. Bush and supported the doctrine of the independent state legislature.
This would also leave little room for the court to challenge congressional cards as unconstitutional. A guerrilla herrimander would be essentially legitimate, and a racial herrimander would be the only way to challenge.
Adoption of the doctrine could also lead to the eradication of independent redirection commissions set up by voters through a voting initiative, such as in Michigan and Arizona, and limit their scope to state legislatures.
But a decision in favor of the doctrine of an independent state has implications that can extend far beyond the maps of Congress. Such a decision, legal experts say, could limit the state court’s ability to repeal all new federal election voting laws and could limit their ability to make changes on election day, such as extending polling hours at a place that is open late due to bad choices. meteorological or technical difficulties.
“I just can’t exaggerate how consistent, how radical, and consistent this can be,” said Wendy Weiser, vice president of democracy at the Brennan Justice Center. “Essentially, no one but Congress will have the right to control some of the abuses of state legislation.
The decision to deal with the case comes as Republican-led state legislatures across the country are trying to snatch more power over the administration of elections from non-partisan election officials and secretaries of state. In Georgia, for example, a law passed last year deprived the secretary of state of significant powers, including as chairman of the State Electoral Council.
Such efforts to take more party control of the election administration have worried some voting rights organizations that the US legislature is moving to take more extreme steps in the election, which is not working out, similar to the plans devised by the legal team. former president Donald J. Trump in the country. the waning days of his presidency.
“The nightmare scenario,” the Brennan Center wrote in June, “is a legislature that is unhappy with the way a local election official has interpreted her state’s election laws, citing theory as a pretext for refusing to certify the results of the presidential election.” and instead choose his own list of voters. “
Legal experts note that there are federal constitutional checks that would prevent the legislature from simply declaring after elections that it will ignore the popular vote and send an alternative voter list. But if the legislature passes a pre-election law, for example, setting out the parameters by which the legislature can take over the election and send its voter list, this can be confirmed according to the doctrine of the independent state legislator.
“If this theory is adopted, then the legislatures of the red states will be smart and start introducing these things before 2024,” said Vikram D. Amar, dean of the University of Illinois College of Law. “So the rules are in place to do what they want.
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