The Supreme Court accepts a case that can radically change the elections

By Pete Williams -

The Supreme Court said Thursday that it will analyze whether state legislatures can decide how the elections to elect the president and members of Congress should take place, a case that could radically change the country's electoral laws.

The justices will study the issue raised by House Republicans from North Carolina, who challenged a state Supreme Court ruling that overturned the legislature's map and redrew congressional district lines after the last census.

The state court noted that the map was overly partisan and violated the state Constitution by failing to reflect the overall composition of North Carolina's political parties.  

A billboard advertises a polling place in New Jersey in 2020. Anadolu Agency / Anadolu Agency via Getty Images

The case introduces an idea gaining traction among Republicans, the so-called independent legislature theory, under which state legislatures have sole power to set election rules and their decisions cannot be reviewed by state courts.

Supporters of former President Donald Trump defended that position during the disputes surrounding the 2020 presidential election, arguing that state courts had no authority to change mail-in voting rules.

Those arguments did not prevail, but at least four Supreme Court justices considered them to have some force.

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In the case now up for review by the highest court, a victory for North Carolina Republicans "would radically alter the power of state courts to stop state legislatures from violating voting rights in federal elections," Rick Hasen explained. , professor of Electoral Law at the University of California at Irvine.

"It could neutralize the ability of state courts to protect voters under the provisions of state constitutions against the violation of their rights," he said.

North Carolina state Republicans, led by House Speaker Timothy Moore, argue that the election clause in the federal Constitution gives them sole authority to decide issues like redistricting, based on the provision that guarantees that the form of the federal elections "will be fixed in each state by the Legislature of the same".

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That clause "does not leave states free to limit the power constitutionally vested in the legislature, nor to place it elsewhere in the state governmental machinery," they defended in their written submissions to the Supreme Court.

State courts cannot impose their own policy determinations on the extent to which partisan considerations affect redistricting, they said, nor can they challenge the legislature on issues like curbside voting and the deadline. to receive vote-by-mail ballots.

But voting rights groups urged the justices to rule that state courts have a role to play in ensuring lawmakers abide by their own state constitutions. 

"The Constitution does not grant impunity to a state legislature for violations of its state Constitution simply because the legislation is related to congressional elections," said Neil Katyal, a Washington attorney who represents the government watchdog group Common Cause.

"The electoral clause does not displace this ancient power of judicial review," he added.

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To rule otherwise "would nullify the state's constitutional rights of citizens," he warned.

Four of the conservative Supreme Court justices have appeared to endorse the independent legislature theory.

In a 2020 dispute over voting in Wisconsin, Justice Neil Gorsuch said, "The Constitution provides that state legislatures -- not federal judges, not state judges, not state governors, not other state officials -- have the primary responsibility to establish the electoral rules.

Similar views have been expressed by Clarence Thomas, Samuel Alito and Brett Kavanaugh.

Matt Sanderson, a Republican election law expert at the Washington firm of Caplan and Drysdale, said the Constitution has always been interpreted as "authorizing legislatures to simply lay down the ground rules of elections in advance, with administrators filling in any holes." practical in the statutory scheme and the state courts protecting the voting rights of individuals".

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He also said a ruling in favor of North Carolina lawmakers could make a big difference in the way elections are conducted for the president and members of Congress.

"State courts would have less power to keep legislatures in check or to interpret poorly written laws in ways that protect the right to vote. It would also signal the Supreme Court's willingness to strongly consider upholding post-election elector designation." elections by a rogue state legislature," the expert said.