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The U.S. Supreme Court hears arguments Wednesday in a case that could radically reshape the way federal elections are conducted. At issue is a new legal theory that could conceivably give state legislatures virtually unchecked power over federal elections and erode major principles of democracy.
The “independent state legislature theory,” referred to as ISL, could give state legislatures independent power to put in place all manner of election rules, without any available review by state courts. In its most extreme form, the theory could eliminate not just state judicial power over elections, but governors’ vetoes, and it might even allow state legislatures to certify presidential electors who were not approved by the voters, an idea that Donald Trump sought, unsuccessfully, to put forth in 2020.
The facts of the case
The case before the court is a perhaps more modest exercise of the conservative ISL theory. The North Carolina state legislature, dominated by Republicans, is seeking to overturn a decision by the state Supreme Court. That court ruled that the Republican legislature, in drawing new congressional district lines after the 2020 Census, had violated the state constitution with an extreme partisan gerrymander. The court twice ordered the legislature to redraw the map, and when those efforts came up short, the state court, with the aid of court-appointed election experts, redrew new lines itself.
The result was that in a state that is closely divided between Republican and Democratic voters, the new map produced an equally divided congressional delegation, seven seats for each party, instead of the lopsided 10 or 11 GOP seats that would have been produced by the Republican plan.
Although the state constitution allows the court-drawn plan to remain in place for only one election cycle, the Republican legislature cried foul and appealed to the U.S. Supreme Court.
Timothy Moore, the Republican speaker of the state House of Representatives, argues that “if you look at our state constitution, nowhere does it mention, at any point, involvement by the courts in any way.” What the state court did, he maintains, was “a Democratic gerrymander of the congressional districts.”
The ISL theory that Moore and other conservative Republicans are putting forth is based on the election clause in the U.S. Constitution. That clause says the “Times, places and manner of holding Elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof.” The North Carolina legislature, backed by the Republican National Committee, reads that clause as meaning that only the state legislature may make election rules, unless the Congress of the United States passes contrary legislation. That arguably would leave out courts and governors.
The state’s argument
North Carolina’s Democratic Governor Roy Cooper sees this case as the canary in the coal mine.
“We know that at the end of the day, if this court rules in favor of the Republicans, that state legislatures across the country will have exclusive control over running federal elections in their states, which stands our system of checks and balances on its head,” he said.
Supporting the state government in opposing the Republican legislature is a vast array of election law experts, judges appointed by both Republicans and Democrats, and some important constitutional scholars, including Northwestern law professor Steven Calabresi, co-founder and current co-chair of the conservative Federalist Society board of directors. Along with other scholars, he contends the word “legislature,” as used at the time of the founding, refers to the whole structure of state government, not just the legislature as we know it today.
“This is a huge national power grab because it suddenly says, those state constitutions don’t matter in determining what the state law-making process is,” he says. “Instead the accidental fact that the elections clause uses the word legislatures somehow trumps state constitutions, gubernatorial vetoes and state judicial review.”
Lawyer Neal Katyal, who represents Common Cause, agrees.
“The state Supreme Court found that the redistricting plans violated the state constitution, and in particular, a rule to guide against malapportionment,” he says.
Katyal notes that the state court found that the Republican redistricting plan “was more malapportioned than 99.999% of the plans that could have been adopted.”
Lawyer David Thompson, representing the Republican legislature, replies that state constitutions are not permitted to deal with the problem of extreme partisan gerrymandering in the drawing of congressional districts. State courts, he maintains, can rule on procedural questions “but cannot enforce substantive” provisions of the state constitution.
‘Not a workable distinction’
The Conference of State Chief Justices, representing the chiefs in all 50 states, strongly disagrees. It took the unusual step of filing a brief in the ISL case.
Drawing a line between procedural and substantive issues “is not a workable distinction,” says Nathan Hecht, the chief justice of the Texas Supreme Court. “It would be hard to even know exactly what that meant.”
The Conference of Chief Justices brief, while nominally not taking sides, says that were the U.S. Supreme Court to adopt the position advocated by the North Carolina state legislature, the result would be “chaos,” flooding federal courts with every state dispute imaginable. Having the federal courts take over disputes involving the election of federal representatives is simply “not fathomable,” Hecht said in an interview with NPR.
UCLA law professor and election law expert Richard Hasen explains why, noting that state legislatures enact general election laws, and state administrators “fill in the gaps.” They “resolve ambiguities, sometimes state attorneys general issue guidance, local election officials interpret and implement laws. So these end up in state court when there’s a dispute.”
That’s what happens now. But, he says, if the theory of the Republican legislators were accepted, every one of those [state law] disputes would instead “turn into a federal dispute.”
The political effect of the ISL would help Republicans in North Carolina, to be sure. But it very likely would help Democrats in some large blue states like New York and California, where state courts have greatly limited the ability of Democrats to engage in partisan gerrymanders.
How the court could react
Just how the very conservative U.S. Supreme Court will react to all of this is unclear. The three most conservative Justices — Clarence Thomas, Samuel Alito and Neil Gorsuch — have previously indicated some support for the independent state legislature theory, and a fourth Justice, Brett Kavanaugh, has at least expressed interest.
North Carolina has been in the eye of election storms before. In 2019, the U.S. Supreme Court, by a 5-to-4 vote, ruled that while partisan gerrymandering may be “incompatible with democratic principles,” the federal courts are powerless to rule on such “political questions.” But Chief Justice John Roberts, writing for the majority, pointed to other remedies — specifically state legislation or state constitutional provisions “to limit partisan considerations in redistricting.” Unlike the federal constitution, state constitutions often have provisions that limit state legislatures ability to engage in partisan gerrymandering.
Lawyers for the North Carolina Republicans will undoubtedly be asked about that language on Wednesday. Reflecting their briefs, they will likely say that language was “dicta,” meaning language that is not binding.
A decision in the case is expected by summer.