WASHINGTON: The U.S. Supreme Court held tense arguments on Wednesday in a Republican appeal that could transform American elections by giving politicians more power over voting rules and curbing the ability of state courts to scrutinize their actions in a major case involving North Carolina congressional districts.
Republican state lawmakers are appealing a decision by North Carolina’s top court to throw out a map delineating the state’s 14 U.S. House of Representatives districts – approved last year by the Republican-controlled state legislature – as unlawfully biased against Democratic voters.
The Republicans are asking the Supreme Court, which has a 6-3 conservative majority, to embrace a once-marginal legal theory that has gained favor among some conservatives called the “independent state legislature” doctrine. Under that doctrine, they claim that the U.S. Constitution gives state legislatures, – and not other entities such as state courts – authority over election rules and electoral district maps.
Critics have said that the theory, if accepted, could upend American democratic norms by restricting a crucial check on partisan political power and breed voter confusion with rules that vary between state and federal contests. North Carolina’s Department of Justice is now defending the actions of the state’s high court alongside the voters and voting rights groups that challenged the Republican-drawn map. They are backed by Democratic President Joe Biden’s administration.
The court’s liberal justices signaled opposition to the arguments of the state lawmakers while conservative justices asked a series of probing questions.
“This is a proposal that gets rid of the normal checks and balances on the way big governmental decisions are made in this country,” liberal Justice Elena Kagan said, referring to the interaction between the executive, legislative and judicial branches of government. “And then you might think that it gets rid of all those checks and balances at exactly the time when they are needed most.”
The United States is grappling with sharp divisions over voting rights. Republican-led state legislatures have pursued new voting restrictions in the aftermath of Republican former President Donald Trump’s false claims that the 2020 election was stolen from him through widespread voting fraud.
“Think about consequences,” Kagan said, “because this is a theory with big consequences.” Kagan said the theory would free state legislatures to engage in the “most extreme form of gerrymandering” – drawing electoral districts to unfairly improve a party’s election chances – while enacting “all manner of restrictions on voting” and ending “all kinds of voter protections.”
Kagan said state legislators often have incentives, in the interest of winning re-election, to suppress, dilute and negate votes. Kagan said the theory also could free legislatures to insert themselves into the certification of the outcome of federal elections – a sensitive issue in light of the Jan. 6, 2021, rampage at the U.S. Capitol by Trump supporters who sought to block congressional certification of Democrat Joe Biden’s 2020 election victory.
David Thompson, a lawyer for the state lawmakers, told the justices that the Constitution “requires state legislatures specifically to perform the federal function of prescribing regulations for federal elections. States lack the authority to restrict the legislature’s substantive discretion when performing this federal function.”
The Supreme Court’s eventual decision, due by the end of June, could apply to 2024 elections including the U.S. presidential race.
The doctrine is based in part on language in the Constitution stating that the “times, places and manner” of federal elections “shall be prescribed in each state by the legislature thereof.”
“Even under your primary theory, however, isn’t it inevitable that there will be questions about the meaning of statutes enacted by the legislature to govern elections?” conservative Justice Samuel Alito asked Thompson.
“So isn’t it inevitable that the state courts are going to have to interpret those provisions and isn’t it inevitable that state election officials in the executive branch are going to have to make decisions about all sorts of little things that come up concerning the conduct of elections?” Alito asked.
Conservative Chief Justice John Roberts noted that the state lawmakers had conceded in the case that even under their legal theory the U.S. Constitution would still allow a state governor to veto any measures passed by the state’s legislature.
“Vesting the power to veto the actions of the legislature significantly undermines the argument that it can do whatever it wants,” Roberts said.
The Republican lawmakers have argued that the state court unconstitutionally usurped the North Carolina General Assembly’s authority to regulate federal elections. Conservative voter advocacy groups backing them have endorsed the doctrine to curb what they describe as brazen attempts by liberals and Democrats to rewrite election laws through the courts.
Neal Katyal, arguing on behalf of voting rights groups, said that to accept the independent state legislature theory would mean that for 233 years the U.S. Constitution’s elections language has been read incorrectly.
“The blast radius from their theory would sow elections chaos,” Katyal said, as it would create a two-track system with one set of rules for federal elections and another for state ones.
Liberal Justice Ketanji Brown Jackson said state legislatures are entities established by state constitutions. Thompson argued that state constitutions cannot impose substantive limits on the actions of legislatures on federal elections.
“I guess what I don’t understand is how you can cut the state constitution out of the equation when it is giving the state legislature authority to exercise the legislative power,” Jackson told Thompson.
North Carolina’s legislature passed its version of the congressional map in November 2021. Two groups of plaintiffs, including Democratic voters and an environmental group, then sued, arguing that the map violated state constitutional provisions concerning free elections and freedom of assembly, among others.
The North Carolina Supreme Court struck down the map in February. A lower state court subsequently rejected the legislature’s redrawn map and adopted a new map drawn by a bipartisan group of experts. The Supreme Court in March declined a Republican request to put those lower court actions on hold. – Agencies
