The Supreme Court will address the future of federal elections Wednesday, debating a case that could upend election politics and encourage state lawmakers to act without judicial oversight.
Supporters of former President Donald Trump relied on versions of the so-called independent state legislature doctrine during efforts to overturn the 2020 election. Now, North Carolina Republican lawmakers are asking judges to adopt the long-dormant legal theory in a redistricting battle, saying, that it allows state legislatures to set rules in federal elections without any restrictions from state courts or other government agencies.
Voting rights groups say the lawmakers’ position would lead to state lawmakers having absolute authority without judicial oversight, even perhaps choosing their desired election winners. They fear that if the court were to adopt the theory, it would eliminate necessary checks and balances, undo the states’ time-tested election systems, spawn lawsuits and require the states to conduct separate state and federal elections.
The dispute comes amid a recent explosion of lawsuits over voting rules and a renewed effort by Trump to allege massive fraud at the polls — a baseless claim dismissed by both Democrats and Republicans.
As recently as last week, Trump called for the “repeal of all rules, regulations and articles, even those found in the Constitution” in a social media post.
As things stand, Republicans currently control the majority of state legislatures and have seen several proposed congressional legislative maps struck down by state courts.
“There’s a lot that could be implied in this decision if the court were to basically say that the legislature of a state has free, unchecked reins to decide federal elections,” said Abha Khanna, a lawyer for Democratic voters in the case. “It would just be a complete, fundamental shift in the way we’ve always done business.” She stressed that could affect not only allegations of partisan gerrymandering, but other rules on issues like voter ID and absentee voting rules.
On the surface, the case presents to the courts a redistricting dispute from North Carolina involving a lower court decision that invalidated the state’s congressional map. The state Supreme Court deemed the map to be an illegal partisan gerrymander and replaced it with a temporary court-drawn map more favorable to Democrats.
Republican lawmakers rushed to the U.S. Supreme Court in March 2022, asking the justices to freeze the state Supreme Court’s decision.
They invoked the Elections Clause of the Constitution, which provides that rules for “the manner of holding elections for Senators and Representatives” shall be prescribed in “each State by the Legislature thereof.”
Under the independent state legislature theory, the lawmakers argue, state legislatures should be able to set rules without interference from state courts.
A 5-4 U.S. Supreme Court declined to block the court-ordered emergency map.
Justice Samuel Alito, writing for Justices Clarence Thomas and Neil Gorsuch, said he believed lawmakers in the case will ultimately prevail.
“If the language of the Elections Clause is taken seriously, there must be some limitation on the authority of state courts to challenge actions taken by state legislatures in prescribing rules for the conduct of federal elections,” he wrote.
Critically, Justice Brett Kavanaugh said he agreed with Alito that the underlying Election Clause issues were important.
“The issue is almost certain to continue to arise until this court finally resolves it,” Kavanaugh wrote. Still, he ultimately voted against lawmakers, warning that it was too close to the looming midterms to change the map.
All eyes will be on Judge Amy Coney Barrett during arguments. She has not previously spoken on the issue and did not join Alito’s dissent back in March. While it only takes four judges to agree to hear a case, five votes are needed to decide it.
On Wednesday, the justices will review the North Carolina Supreme Court ruling that went against the lawmakers, saying lawmakers do not have “unfettered power” to draw election maps.
The state court acknowledged that redistricting is primarily delegated to the legislature, but said it must be done in accordance with the state constitution. The court said the cards violated North Carolina’s free elections, due process, free speech and free assembly provisions.
Traditionally, legislatures have set ground rules for conducting an election, but have not acted alone or with the final say. The processes put in place have been subject to intervention by election administrators and state courts.
But the strictest reading of the independent state legislature theory says that when it comes to federal elections, the state courts must stay out of the picture.
The Republican lawmakers argued in court papers that “the text of the Constitution directly answers the question in this case.” The Elections Clause provides “unambiguous language” regarding the manner in which federal elections are conducted and makes clear that the rules will be made by the legislatures.
“The North Carolina Supreme Court decreed that the 2022 election and all future congressional elections in North Carolina should not be conducted in the ‘manner’ prescribed by the Legislature,” David H. Thompson argued on behalf of the lawmakers.
He argued that the lower court did not point to a separate state constitutional provision when it struck down the congressional map, but instead seized upon “vague and abstract state constitutional language.”
“The drafting history of the Constitution confirms that the assignment of authority to regulate elections specifically to each state’s legislature was a deliberate choice,” Thompson said.
John Eastman, the attorney who served as a key architect of the push to overturn the election results for Trump, has filed a wide-ranging amicus brief in favor of the lawmakers. Lawyers for the Republican National Committee scaled back some of Eastman’s arguments, but they also want the justices to adopt a version of the theory.
Two former attorneys general for Democratic administrations will argue for voting rights groups and the state, supporting the state Supreme Court’s decision. They are supported by the current counsel of the Biden administration, Elizabeth Prelogar.
Don Verrilli, who served as solicitor general during the Obama administration, argued on behalf of the state in court papers, pointing out that the North Carolina General Assembly passed a law authorizing judicial review of congressional redistricting to ensure it complies with state constitutional provisions. requirements.
He told the court that they could resolve the case on that factor alone, never wading into the independent state legislature doctrine.
“It is inconceivable that the founding generation would have understood the Elections Clause to prohibit state legislatures from authorizing state courts to enforce the state constitution and remedy proven violations,” Verrilli argued.
He urged the court not to entertain the independent state legislature doctrine, warning that it could create serious election administration problems, upgrade time-tested systems, spawn protected lawsuits and possibly require states to conduct separate state and federal elections.
Neal Katyal, who served as acting solicitor general for the Obama administration, will argue on behalf of voting rights groups as well as individual Democratic voters. Notably, J. Michael Luttig, a conservative legal correspondent who played a pivotal role in the run-up to the attack on the US Capitol on January 6, 2021, advising then-Vice President Mike Pence’s legal team, serves as Katyal’s co-counsel.
“The independent state legislature doctrine was the centerpiece of Trump’s effort to overturn the 2020 election,” Luttig said in an interview with CNN. “I have believed since January 6 that I had a responsibility to the country to explain why I rejected the theory by advising the vice president,” he said.
Prelogar also criticizes the theory, leaning on historical tradition in an attempt to appeal to the more conservative members of the court.
“More than two centuries of practice confirm that state legislatures are subject to state constitutional limitations” when exercising their authority under the Constitution, she told the justices in court papers.