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The Supreme Court on Thursday agreed to hear a dispute over redistricting in North Carolina, in a case that could have major implications for voting rights and fundamentally change the landscape of election law.
Central to the case is the so called “Independent State Legislature” theory — a legal doctrine pushed by former President Donald Trump and his supporters during frantic efforts to call into question 2020 election results. At issue is the power of state courts to reject rules adopted by a state legislature in a dispute over federal elections.
Critics say, if it is blessed by the Supreme Court, the theory could lead to rogue legislators unchecked by state courts.
The doctrine relies on the Elections Clause of the US Constitution that vests “state legislatures” with control over the “Times, Places and Manner” of holding elections.
Under the theory being pushed by some conservatives, the word “legislature” excludes a role for state courts.
Traditionally, according to Rick Hasen, an election law expert at the University of California’s Irvine School of Law, legislatures have set ground rules for conducting an election, but those rules are also subject to state processes that include a role for election administrators and state courts to interpret the meaning of state election rules.
“If the Supreme Court adopts this theory, voters would have their rights further eroded by a neutering of state courts’ ability to be more protective of voters than federal courts,” he said.
Some background: The appeal at issue was brought to the high court by Republicans in North Carolina who are challenging congressional maps drawn by state judges that favor democrats.
The dispute began after North Carolina gained a seat in the House of Representatives, and the North Carolina General Assembly twice adopted new congressional districting maps. On both occasions, however, the state’s Supreme Court rejected the maps and finally ordered that the 2022 election go forward with maps drawn by judges. The court held that the General Assembly’s maps amounted to partisan gerrymanders and violated provisions of the state constitution.
Lawyers for republican state House Speaker Timothy Moore and state Senate President Pro Tempore Philip Berger asked the Supreme Court to step in to block the lower court ruling on an emergency basis back in March.
Back then, the court declined to step in over the dissent of Justices Samuel Alito, Clarence Thomas and Neil Gorsuch. Alito, writing for his colleagues, said that the case presented an “exceptionally important and recurring question of constitutional law.”
“If the language of the Electors Clause is taken seriously, there must be some limit on the authority of state courts to countermand actions taken by state legislatures when they are prescribing rules for the conduct of federal elections,” Alito wrote.
Justice Brett Kavanaugh concurred with his conservative colleagues that the court should eventually take up the issue of the role of state courts. But he joined the majority in the case at hand, allowing the maps to be used for upcoming election procedures.
“This Court has repeatedly ruled that federal courts ordinarily should not alter state election laws in the period close to an election,” Kavanaugh wrote.
After that defeat on the emergency application, David Thompson of Cooper & Kirk, a lawyer representing the North Carolina Republicans, came back to the court asking the justices to take up the appeal and decide the issue in time to impact future elections.
In court papers, he acknowledged that the 2022 congressional elections in North Carolina will take place under the current maps but said that the court should “intervene now to resolve this critically important and recurring question and ensure that congressional elections in 2024 and thereafter are conducted in a manner consistent with our Constitution’s express design.”
He argued that the Elections Clause “creates the power to regulate the times, places and manner of federal elections and then vests that power in the ‘legislature’ of each State.”
“It does not leave the States free to limit the legislature’s constitutionally vested power, or place it elsewhere in the State’s governmental machinery, as a matter of state law,” he said.
