WASHINGTON — The Supreme Court announced on Thursday that it might hear a case that might radically reshape how federal elections are conducted by giving state legislatures independent power, not subject to review by state courts, to set election rules in conflict with state constitutions.
The case has the potential to affect many points of the 2024 election, including by giving the justices power to influence the presidential race if disputes arise over how state courts interpret state election laws.
In taking on the case, the court could upend nearly every facet of the American electoral process, allowing state legislatures to set latest rules, regulations and districts on federal elections with few checks against overreach, and potentially create a chaotic system with differing rules and voting eligibility for presidential elections.
“The Supreme Court’s decision might be enormously significant for presidential elections, congressional elections and congressional district districting,” said J. Michael Luttig, a former federal appeals court judge. “And due to this fact, for American democracy.”
Protections against partisan gerrymandering established through the state courts could essentially vanish. The flexibility to challenge latest voting laws on the state level could possibly be reduced. And the speculation underpinning the case could open the door to state legislatures sending their very own slates of electors.
It’s one thing to conform to hear a case, in fact, and one other to rule on it. But 4 justices have already expressed not less than tentative support for the doctrine, making a choice accepting it greater than plausible. The court will probably hear arguments in the autumn and issue its decision next 12 months.
Currently, Republicans have complete control over 30 state legislatures, according to the National Conference of State Legislatures, and were the force behind a wave of recent voting restrictions passed last 12 months. And Republican legislatures in key battleground states like Wisconsin, Pennsylvania and North Carolina have used their control over redistricting to effectively lock in power for a decade.
Democrats, in turn, control just 17 state legislatures.
The case concerns a voting map drawn by the North Carolina legislature that was rejected as a partisan gerrymander by the State Supreme Court. Republicans in search of to revive the legislative map argued that the state court was powerless to act under the so-called independent state legislature doctrine.
The doctrine is predicated on a reading of two similar provisions of the U.S. Structure. The one at issue within the North Carolina case, the Elections Clause, says: “The times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof.”
Which means, North Carolina Republicans argued, that the state legislature has sole responsibility amongst state institutions for drawing congressional districts and that state courts don’t have any 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 might be “repugnant to the sovereignty of states, the authority of state constitutions and the independence of state courts, and would produce absurd and dangerous consequences.”
“This case presents an exceptionally vital and recurring query of constitutional law, namely, the extent of a state court’s authority to reject rules adopted by a state legislature to be used in conducting federal elections,” Justice Samuel A. Alito Jr. wrote, joined by Justices Clarence Thomas and Neil M. Gorsuch.
Justice Brett M. Kavanaugh agreed that the query was vital. “The difficulty is nearly certain to maintain arising until the court definitively resolves it,” he wrote.
However the court should consider it in an orderly fashion, he wrote, outside the context of an approaching election. He wrote that the court should grant a petition in search of review on the merits “in an appropriate case — either on this case from North Carolina or in an identical case from one other state.”
The court has now granted the petition within the North Carolina case, Moore v. Harper, No. 21-1271.
Some precedents of the U.S. Supreme Court are inclined to undermine the independent state legislature doctrine.
When the court closed the doors of federal courts to claims of partisan gerrymandering in 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 proceed to listen to such cases — including within the context of congressional redistricting.
Lawyers defending the North Carolina Supreme Court’s ruling in the brand new case said it was a poor vehicle for resolving the scope of the independent state legislature doctrine, because the legislature itself had authorized state courts to review redistricting laws.
Throughout the past redistricting cycle, state courts in North Carolina, Ohio and Recent York rejected newly drawn maps as partisan gerrymanders. In 2018, the State Supreme Court in Pennsylvania rejected Republican-drawn congressional districts.
But should the Supreme Court embrace the doctrine, “it might completely eliminate the chance to put aside redistricting maps based upon the proposition that they be some sort of a partisan gerrymander,” said David Rivkin, a federal constitutional law expert who served within the Reagan and George H.W. Bush administrations and has supported the independent state legislature doctrine.
It will also leave few remaining avenues through the courts to challenge congressional maps as unconstitutional. Partisan gerrymandering would essentially be legal, and a racial gerrymander could be the one option to lodge a challenge.
Embracing the doctrine could also find yourself gutting independent redistricting commissions which were established by voters through a ballot initiative, resembling in Michigan and Arizona, and limit their scope to only state legislative districts.
But a ruling favoring the independent state legislature doctrine has consequences that might extend well beyond congressional maps. Such a choice, legal experts say, could limit a state court’s ability to strike down any latest voting laws regarding federal elections, and will restrict their ability to make changes on Election Day, like extending polling hours at a location that opened late due to bad weather or technical difficulties.
“I just can’t overstate how consequential, how radical and consequential this could possibly be,” said Wendy Weiser, the vp for democracy on the Brennan Center for Justice. “Essentially nobody aside from Congress could be allowed to rein in a few of the abuses of state legislatures.”
The choice to listen to the case comes as Republican-led state legislatures across the country have sought to wrest more authority over the administration of elections from nonpartisan election officials and secretaries of state. In Georgia, for instance, a law passed last 12 months stripped the secretary of state of great power, including as chair of the State Elections Board.
Such efforts to take more partisan control over election administration have apprehensive some voting rights organizations that state legislatures are moving toward taking more extreme steps in elections that don’t go their way, akin to plans hatched by former President Donald J. Trump’s legal team within the waning days of his presidency.
“The nightmare scenario,” the Brennan Center wrote in June, “is that a legislature, displeased with how an election official on the bottom has interpreted her state’s election laws, would invoke the speculation as a pretext to refuse to certify the outcomes of a presidential election and as a substitute select its own slate of electors.”
Legal experts note that there are federal constitutional checks that might prevent a legislature from simply declaring after an election that it can ignore the favored vote and send an alternate slate of electors. But should the legislature pass a law before an election, for instance, setting the parameters by which a legislature could take over an election and send its slate of electors, that could possibly be upheld under the independent state legislature doctrine.
“If this theory is embraced, then red state legislatures are going to be smart, they usually’re going to start out to place into place these items before 2024,” said Vikram D. Amar, the dean of the University of Illinois College of Law. “So the foundations are in place for them to do what they need.”
Adam Liptak reported from Washington, and Nick Corasaniti from Recent York.