“Do state courts have the power to interpret their own state constitutions? The Supreme Court could be poised to say “no” — at least when it comes to redistricting and election law.
Last week, the Supreme Court agreed to hear the case Moore v. Harper in the coming fall term. In that case, Republican legislators in North Carolina are asking the court to overturn the state Supreme Court’s decision to throw out their gerrymandered congressional map and impose one of the court’s own.
Their argument rests on an extreme reading of the elections clause of the U.S. Constitution that posits that only state legislatures and Congress have the authority to decide how federal elections are run. Under this school of thought, known as the “independent state legislature” theory, state courts would no longer be able to intervene — even when a legislature violated the state’s constitution, as was found to be the case in North Carolina.
The independent state legislature theory is fewer than 25 years old, and for most of its life, it’s been relegated to the fringes of academia. But it was widely promoted by former President Donald Trump and his allies as they attempted to first undermine — and then overturn — the outcome of the 2020 presidential election. And several Supreme Court justices have already suggested that they’re on board with the theory. During litigation over election laws in Pennsylvania and Wisconsin in 2020, Justices Clarence Thomas, Samuel Alito and Neil Gorsuch endorsed some version of the idea that state legislatures should have nearly unfettered power over how federal elections are run, and earlier this year, they said in an emergency-docket ruling that they would have ruled in favor of the North Carolina legislature.
If the Supreme Court sides with North Carolina Republicans in this case, it would have massive implications for election law. Depending on how the court rules, state courts might no longer be allowed to strike down legislatures’ proposed congressional maps for being gerrymandered. And if this happens, the way American elections are conducted would change in dramatic and destabilizing ways.”
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“An extreme embrace of the theory by the Supreme Court would hand legislatures power over every aspect of how federal elections are run, to the exclusion of not only state courts but also possibly other state actors like governors and election administrators. “It would be a voter suppressor’s fever dream,” Wolf said.”
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“the impact wouldn’t stop at redistricting. The Constitution’s elections clause also covers every aspect of how federal elections are run. That includes the 56 voting restrictions passed since the 2020 election — laws that require ID in order to vote, discourage absentee voting, move up voter deadlines, cut early voting, purge voters from the rolls and ban giving food and water to voters waiting in line.”
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“Similarly, courts would not be able to unilaterally change federal election laws in an emergency, like the Pennsylvania Supreme Court did in 2020 when it extended the deadline for absentee ballots to be received amid widespread delays in postal service. “If the state legislature says, ‘Polls close at 7 p.m.,’ and on Election Day, there’s a hurricane and the [state] Supreme Court says, ‘Keep them open until 10,’ the legislature wins,” Vladeck said.”
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“Some Trump allies have also argued that the independent state legislature theory empowers legislatures to appoint an alternate set of state electors — which, in 2020, could have overturned the presidential election. However, Leah Litman, a law professor at the University of Michigan, said that it’s important to remember that even the independent state legislature theory doesn’t mean state legislatures would be completely unchecked, because the U.S. Constitution would still apply. But she added that part of what alarms her about the theory is that it’s so unclear what embracing it would actually do. “It’s just kind of a mess,” she said of the theory. “We really don’t know what it would look like.””
“The North Carolina Supreme Court ruled in February that the state’s congressional maps violated the state constitution by illegally favoring Republicans. The map — drawn by GOP legislators — could have given the party control of as many as 11 of the closely divided state’s 14 districts.
But the Republican legislators argued in an appeal to the U.S. Supreme Court that the state court had extremely limited authority to police the legislature on federal election matters — a theory known as the “independent state legislature” theory.
The theory holds that state legislatures have near-uncheckable authority to set procedures for federal elections — and state courts have either a limited or even no ability to rule on those laws. The theory is based on a pair of clauses in the constitution, the Electors Clause and the Elections Clause, that mention state legislatures but do not explicitly mention the judiciary.
Republicans have increasingly promoted the theory as a way around state courts that have recently struck down redistricting maps as partisan gerrymanders.
“Some provisions of the Constitution are subject to reasonable debate. Others are not,” read a friend of the court brief from the Republican National Committee and other GOP committees earlier this year.
“Absent from the constitutionally mandated order of authority is any role for the state judiciary,” the brief continued. “Notwithstanding this omission, certain state and commonwealth courts have taken it upon themselves to appropriate the processes that belong to the politically accountable branches of government.”
A Supreme Court ruling that state legislatures alone have the power to make decisions about federal elections, within the boundaries set by federal law, could have a dramatic impact on redistricting processes and election procedures.
Actions by state legislatures could still be subject to challenge in federal courts, but state courts and even governors could be sidelined under the most expansive interpretations of the “independent state legislature” theory.
With 30 state legislatures currently in Republican hands, GOP state legislative leaders would be strongly positioned to skew maps in their party’s favor and to make changes Republican have sought to voting procedures.
Four conservative justices — Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh — have signaled at least an openness to some version of the theory.
The theory was also central to then-President Donald Trump’s ultimately unsuccessful attempt to get states to appoint a slate of alternate electors in the 2020 presidential contest.
The court is likely to hear arguments in the case late this fall or early next year. The Supreme Court is also set to hear arguments in October in the case Merrill v. Milligan, which election lawyers and civil rights groups worry could undermine the Voting Rights Act.”
“The Supreme Court handed down a brief order Tuesday evening that effectively reinstates racially gerrymandered congressional maps in the state of Louisiana, at least for the 2022 election.
Under these maps, Black voters will control just one of Louisiana’s six congressional seats, despite the fact that African Americans make up nearly a third of the state’s population. Thus, the Court’s decision in Ardoin v. Robinson means that Black people will have half as much congressional representation as they would enjoy under maps where Black voters have as much opportunity to elect their own preferred candidate as white people in Louisiana.
A federal trial court, applying longstanding Supreme Court precedents holding that the Voting Rights Act does not permit such racial gerrymanders, issued a preliminary injunction temporarily striking down the Louisiana maps and ordering the state legislature to draw new ones that include two Black-majority districts. Notably, a very conservative panel of the United States Court of Appeals for the Fifth Circuit denied the state’s request to stay the trial court’s decision — a sign that Louisiana’s maps were such a clear violation of the Voting Rights Act that even one of the most conservative appeals courts in the country could not find a good reason to disturb the trial court’s decision.
As the Fifth Circuit explained, current law typically forbids maps that dilute a particular racial group’s voting power, at least when that group is “sufficiently large and compact to form a majority” in additional congressional districts, when it “votes cohesively” and when “whites tend to vote as a bloc” to defeat the minority group’s preferred candidates.
Nevertheless, the Supreme Court voted 6-3 along party lines to stay the trial court’s injunction, effectively reinstating the gerrymandered maps. The Court’s order is only one page, and it provides no substantive explanation of why the Court’s Republican appointees voted to effectively strip Black Louisianans of half of their representation in the US House of Representatives.”
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“Taken together, the Court’s orders in Merrill, Ardoin, and the Wisconsin case suggest that the justices are skeptical of current rules, which provide fairly robust protections against racial gerrymandering, and plan to replace those rules with a new regime that is likely less friendly to Black voters — and most likely to minority voters generally. None of these three orders was particularly well explained, but the pattern is that, in each case, the Court ruled against efforts to draw maps that expand Black political power.”
“It was a good night for the MAGA crew, with Trump apologists and 2020 election deniers largely sailing to their party’s nominations in Illinois, Utah, Oklahoma, and Colorado.”
“Competitive congressional districts have been steadily disappearing for decades. In the current redistricting cycle, six highly competitive districts in the House of Representatives were drawn out of existence. The Cook Political Report estimates that less than 8 percent of congressional districts will be competitive come November.
This is a problem. It’s not because competitive districts are a powerfully moderating force on our democracy — instead, the decline of competitive districts is a problem that reflects deeper causes of partisan polarization and leaves the overwhelming majority of Americans in places where their votes don’t matter, and where parties and candidates don’t need to work for anybody’s votes.
Governing in America requires compromise. But when over 90 percent of congressional districts lean toward one of the two major parties, that means most representatives have little incentive to compromise. In fact, representatives increasingly face strong pressures to be very partisan, which has made governing very difficult.”