\n\n“Do state courts have the power to interpret their own state constitutions? The Supreme Court could be poised to say \u201cno\u201d \u2014 at least when it comes to redistricting and election law.<\/p>\n\n\n\n
Last week, the Supreme Court agreed to hear<\/a> 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<\/em> Supreme Court\u2019s decision to throw out their gerrymandered congressional map<\/a> and impose one of the court\u2019s own<\/a>. <\/p>\n\n\n\n Their argument rests on an extreme reading of the elections clause<\/a> of the U.S. Constitution that posits<\/a> that only state legislatures and Congress have the authority to decide how federal elections are run. Under this school of thought, known as the \u201cindependent state legislature<\/a>\u201d theory, state courts would no longer be able to intervene \u2014 even when a legislature violated the state\u2019s constitution, as was found to be the case in North Carolina.<\/p>\n\n\n\n The independent state legislature theory is fewer than 25 years old<\/a>, and for most of its life, it\u2019s been relegated to the fringes of academia. But it was widely promoted by former President Donald Trump and his allies<\/a> as they attempted<\/a> to first undermine \u2014 and<\/a> then overturn<\/a> \u2014 the outcome of the 2020 presidential election. And several Supreme Court justices have already suggested that they\u2019re on board with the theory. During litigation over election laws in Pennsylvania<\/a> and Wisconsin<\/a> 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<\/a> of the North Carolina legislature.<\/p>\n\n\n\n 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\u2019 proposed congressional maps for being gerrymandered. And if this happens, the way American elections are conducted would change in dramatic and destabilizing ways.”<\/p>\n\n\n\n …<\/p>\n\n\n\n “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. \u201cIt would be a voter suppressor\u2019s fever dream,\u201d Wolf said.”<\/p>\n\n\n\n …<\/p>\n\n\n\n “the impact wouldn\u2019t stop at redistricting. The Constitution\u2019s elections clause also covers every aspect of how federal elections are run. That includes the 56 voting restrictions passed since the 2020 election<\/a> \u2014 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.”<\/p>\n\n\n\n …<\/p>\n\n\n\n “Similarly, courts would not be able to unilaterally change federal election laws in an emergency, like the Pennsylvania Supreme Court did in 2020<\/a> when it extended the deadline for absentee ballots to be received amid widespread delays in postal service<\/a>. \u201cIf the state legislature says, \u2018Polls close at 7 p.m.,\u2019 and on Election Day, there\u2019s a hurricane and the [state] Supreme Court says, \u2018Keep them open until 10,\u2019 the legislature wins,\u201d Vladeck said.”<\/p>\n\n\n\n …<\/p>\n\n\n\n “Some Trump allies have also argued that the independent state legislature theory empowers legislatures to appoint an alternate set of state electors \u2014 which, in 2020, could have overturned the presidential election. However, Leah Litman<\/a>, a law professor at the University of Michigan, said that it\u2019s important to remember that even the independent state legislature theory doesn\u2019t mean state legislatures would be completely<\/em> unchecked, because the U.S. Constitution would still apply. But she added that part of what alarms her about the theory is that it\u2019s so unclear what embracing it would actually do. \u201cIt\u2019s just kind of a mess,\u201d she said of the theory. \u201cWe really don\u2019t know what it would look like.\u201d”<\/p>\n\n\n\n