(Bloomberg) -- The US Supreme Court is poised to consider a far-reaching constitutional argument that would give state lawmakers broad power to set the rules for federal elections in a dispute with roots in bitter controversies over the 2000 and 2020 presidential races.
The court on Wednesday will use a North Carolina redistricting case to consider Republican contentions that the Constitution assigns near-exclusive election authority to state legislatures. The approach would strip state judges and other officials of longstanding roles in shaping congressional districts, voter eligibility and mail-in ballots requirements starting with the 2024 election.
Critics say the so-called independent state legislature theory would have dire implications for democracy, depriving voters of crucial layers of protection, wreaking havoc on election administration and changing a centuries-old constitutional understanding.
“What these folks are asking for is extraordinary, and it would totally change the way elections are done,” said former US Solicitor General Neal Katyal, who will be arguing against the approach on behalf of Common Cause and the North Carolina League of Conservation Voters. “What kind of world is it in which state legislatures can do whatever the heck they want when it comes to elections?”
Backers of independent state legislature theory say it would ensure that elected representatives, not judges or administrators, are setting out the voting rules.
“The idea here is that you are trying to bring back a sense of democracy to the process by making sure that the people who are writing our election laws are the people we elect to do that,” said Jason Snead, executive director of the conservative Honest Elections Project.
If adopted, the doctrine could prevent state judges from applying their own constitutions in election cases — and empower the US Supreme Court to decide when those state courts have overstepped their authority.
It could also imperil thousands of election policies and laws that weren’t adopted directly by a state legislature, including those put in place by state agencies or enacted through ballot initiatives. The approach also could renew doubt about the use of independent redistricting commissions, which the Supreme Court upheld in 2015.
The debate stems from the Constitution’s elections clause, which says the rules for congressional races “shall be prescribed in each State by the Legislature thereof” unless overridden by Congress. A similar provision governs the appointment of presidential electors.
The central question is whether that phrase refers only to a state’s elected legislative body or instead to its broader lawmaking system, a category that includes officials authorized to make election-related decisions, citizens voting on ballot initiatives and courts exercising their traditional power to review laws.
Bush and Trump
Republicans invoked a version of the independent state theory on behalf of George W. Bush in his 2000 presidential election deadlock with Democrat Al Gore. Bush’s lawyers contended the Florida Supreme Court had usurped power of state lawmakers when it ordered ballot recounts that might have swung the election to Gore.
The Supreme Court as a whole didn’t adopt that approach, instead relying on the Constitution’s equal protection clause to rule for Bush and seal his election.
The GOP renewed the push in the 2020 election, arguing that the Pennsylvania Supreme Court violated the elections and electors clauses by allowing three extra days for mailed ballots to arrive beyond the deadline imposed by the legislature. The argument had backing from then-President Donald Trump, who might have benefited from it had the vote been closer.
Four current Supreme Court justices have suggested varying degrees of support for the theory. In an opinion joined by Justices Clarence Thomas and Neil Gorsuch in March, Justice Samuel Alito said the elections clause language “specifies a particular organ of a state government, and we must take that language seriously.”
In a Wisconsin case last year, Justice Brett Kavanaugh wrote that “the text of the Constitution requires federal courts to ensure that state courts do not rewrite state election laws.”
In the latest case, North Carolina Republicans led by House Speaker Timothy Moore are seeking to reinstate a voting map the General Assembly drew to lock in probable GOP victories in 10 of the state’s 14 districts.
The North Carolina Supreme Court said the map was so partisan it violated several provisions of the state constitution. State courts eventually imposed a different map, producing a 7-7 Republican-Democrat split in November’s midterm election.
Critics fault the North Carolina high court for relying on constitutional provisions that don’t explicitly refer to gerrymandering, including a clause that guarantees “free” elections.
“This is a very new, novel reading of several vague provisions of the state constitution to then seize legislative power and arrogate it into the North Carolina Supreme Court,” Snead said.
North Carolina officials, voters, advocacy groups and the Biden administration are defending the lower court ruling. They contend the independent state legislature theory shouldn’t even be an issue in the case because a North Carolina statute explicitly authorizes judicial review of congressional redistricting to ensure it complies with the state constitution.
They also say a ruling favoring North Carolina Republicans would contradict what the court said in 2019, when it ruled that federal judges can’t throw out voting maps for being too partisan. Writing for the court, Chief Justice John Roberts downplayed the impact of the decision by saying state courts could invoke their own constitutions to invalidate partisan gerrymanders.
“Provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply,” Roberts wrote.
The stakes in the case have prompted an outpouring of outside briefs. Those urging a ruling against the North Carolina Republicans include several high-profile conservatives: retired federal appeals court Judge J. Michael Luttig, Federalist Society co-founder Steven Calabresi and longtime Republican election lawyer Benjamin Ginsberg, who was one of Bush’s top attorneys in 2000.
Ginsberg said the latest arguments go well beyond what was at issue in Bush v. Gore, which he said involved the Florida Supreme Court changing the election laws after the voting was over. Ginsberg said in court papers that adoption of the sweeping GOP approach toward the independent state legislature theory would exacerbate existing distrust in the election system at a fragile moment.
“The possible consequences of injecting so much doubt and confusion into our electoral system are severe,” Ginsberg wrote. “Now is a particularly tenuous time to launch a novel experiment with our democracy based on a novel reading of previously settled law.”
The case is Moore v. Harper, 21-1271.
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