An obscure legal theory promoted by former President Donald Trump’s allies in an effort to overturn the 2020 presidential election will soon have its day before the Supreme Court.
With the midterm elections – and rumors of a 2024 presidential run – as the backdrop, the Supreme Court begins a new term next month and will take up a voting rights case that could fundamentally change the landscape of election law, sparking a dispute over gerrymandering and congressional districts. in one that could hypothetically change the way American elections are decided.
Voting rights groups fear the case could lead to the ability of rogue state lawmakers to act unchecked when it comes to federal election rules such as drawing district lines, early voting rules and voter identification requirements. And a group of chief justices across the country is also concerned.
“This case could disrupt almost every aspect of federal election administration,” Allison Riggs, senior voting rights counsel for the Southern Coalition for Social Justice, said in an interview.
Arguments are likely to take place in November or December, and many Republicans – who have controlled most state legislatures since 2010 – are happy that the conservative-leaning Supreme Court will enter the fray.
John Eastman, who served as a key architect of the push to overturn Trump’s election results, has filed a wide-ranging amicus brief urging the justices to take up the legal theory that had been largely dormant after the 2020 election. Lawyers for the Republican National Committee pushed back at some of Eastman’s arguments, but they also want the justices to adopt one version of the theory.
On the surface, Moore v. Harper files a redistricting dispute outside of North Carolina, a lower court decision that overturned the state’s congressional map. The court struck down the map – calling it an illegal partisan gerrymander – and replaced it with a court-drawn map that was more pro-Democrat.
North Carolina’s Republican lawmakers are asking the justices to reverse the lower court and uphold a legal theory called the independent state legislature doctrine. They refer to the Constitution’s Election Clause, which stipulates that rules governing the “manner of elections” must be established in each state legislature.
In theory, state legislatures should be able to set rules for federal elections without being controlled by state constitutions, either through interpretation by state courts or through the operation of state constitutional reform commissions.
Traditionally, parliaments have established the basic rules for conducting elections, but they have not acted alone or have the last word. Established processes have involved election administrators and state courts.
But the strictest reading of the theory of independent state legislatures holds that state courts, when it comes to federal elections, must stay out.
A majority of the North Carolina state Supreme Court, in ruling against the lawmakers, said lawmakers do not have unlimited power to draw electoral maps. The state court acknowledged that redistricting is delegated to the legislature, but said it must be done “consistent with the State Constitution.”
Republican lawmakers appealed to the US Supreme Court, arguing in court papers that “the text of the Constitution directly answers the question presented in this case.” The Elections Clause provides “ambiguous language” about the manner of federal elections and makes it clear that the rules will be drawn by the legislature.
Critics say this tactic could undermine your vote in 2022
“However, in the decision below, the North Carolina Supreme Court invalidated the state legislature’s properly drawn congressional map and held that the 2022 election and all subsequent state congressional elections would not be conducted “in the manner” established by the legislature. “But in the manner directed by the state’s judicial branch,” said David Thompson of Cooper & Kirk, an attorney representing the North Carolina lawmaker, in court papers.
Thompson said officials “don’t assign any role to state judges in this policy-making process.”
Voters in the state and voting rights groups asked the justices to stay out of the case and uphold the lower court’s ruling.
“The text, history and structure of the federal constitution rule that state legislatures are not bound by their state constitutions when state supreme courts redistrict under the Election Clause,” wrote Riggs, one of his lawyers.
In an interview, Riggs warned that if the court adopted strict versions of the doctrine of independent state legislatures, it could lead to separate federal and state rules for federal elections that would squeeze states and confuse voters.
He said it could also invite challenges related to post-election disputes when a legislature does not want to accept voters who reflect the outcome of the state’s vote.
In an early phase of the case, three conservative justices, Samuel Alito, Neil Gorsuch and Clarence Thomas, expressed sympathy for the theory and said the case presented “an important and recurring challenge to constitutional law.”
North Carolina Republicans asked SCOTUS to grant an emergency stay on the lower court’s order. That request was denied, but Alito said in a dissent that the Election Clause’s language must be taken “seriously.”
It stated that the state Supreme Court justified its actions to block the map, arguing that the map was a partisan gerrymander and therefore violated provisions of the state constitution. But for Alito, those state constitutional provisions say nothing directly about partisan gerrymandering.
“If the language of the Elections Clause is to be taken seriously,” Alito wrote, “there must be a limit to state courts’ ability to reverse actions taken by state legislatures when they set rules for conducting federal elections.”
After lawmakers lost that emergency order, they went back to court asking the courts to hear the case on its merits and the court agreed.
Some election law experts push back that a narrow view of the doctrine would allow lawmakers to rule out something like a Joe Biden victory and set aside a state’s popular vote to allow Trump supporters to nominate their electors.
“It could radically change how much discretion state legislatures have in handling federal elections, but it doesn’t give a legislature the power to ignore popular presidential elections and choose its own slate of voters,” Derek T. Muller at the University of Iowa. College of Law, he said in an interview with CNN.
Muller says there are other obstacles based on federal law and the federal constitution that prevent a state legislature from ignoring a popular vote.
“A ruling in favor of state legislators here may encourage them to try to overturn the election results next time, but eventually they will stop,” he said.
Republican National Committee attorney Jason Torchinsky agreed. “Existing federal law provides strong protections against post-election malfeasance, such as tampering with valid election results,” he wrote in an amicus brief.
Torchinsky also counters that state courts would have no role if the U.S. Supreme Court were to adopt the independent state legislature doctrine.
“In the context of redistricting, state courts can play a role when there is express authorization in the state constitution or state statute, or deadlock when the political branches can’t agree,” he said.
But in the case at hand, Torchinsky added, “there is no partisan gerrymandering criteria in the state constitution and it was made up by the state Supreme Court.”
In his brief, Eastman, representing the Center for Constitutional Jurisprudence – the public interest law arm of the Claremont Institute – rejected the lower court’s opinion.
“The lower court, contrary to the Constitution’s unambiguous allocation of power to state legislatures, established the ‘way’ in which congressional elections are to be conducted themselves, thus removing authority over elections from the most responsible branch of government (the legislature) to the least accountable branch of government (the judiciary),” he wrote.
Honest Elections, part of a network of groups founded by Leonard Leo, who is now chairman of the Federalist Society Board, also filed a brief in favor of North Carolina. Leonard played a crucial role in advising the Trump administration on judicial appointments.
Jason Snead, executive director of Honest Elections, said he believes the case is about sustaining an activist judiciary.
“We’ve seen a disturbing trend where state courts are increasingly willing to go behind closed doors and rewrite our election rules,” Snead said. “It’s about making sure that elected legislators are writing election laws, that those laws are being respected, and that the courts are not overstepping their authority and acting as super legislators.”
But a bipartisan brief has failed to draw attention to critics of the doctrine of independent state legislatures. It was introduced by the Conference of Chief Justices, a group of chief justices or judges of last resort from the courts of last resort in all 50 states.
The group rarely files amicus briefs, and does not take a position on the redistricting dispute at the center of the case, but is deeply skeptical of the doctrine of independent state legislatures.
“The Elections Clause does not prohibit state court review of state laws governing federal elections under state constitutional provisions,” wrote group attorney Carter Phillips.
Phillips, addressing members of the court who look to the original intent of the framers when reviewing cases, argued: “The history of the Framing period confirms that the Framers did not create an exception to state constitutional supremacy, including the power to establish state judicial review in the Election Clause.”
The federal constitution does not “remove state courts from their traditional role of reviewing election laws under state constitutions,” Phillips added.