The US Supreme Court engaged in tense arguments on Wednesday in a Republican appeal that could upend the nation’s elections by giving politicians more power over voting rules and limiting the ability of state courts to review their actions.
The court, which has a 6-3 conservative majority, heard about three hours of argument in the case, which involves North Carolina’s congressional districts. Some of his conservatives, including Samuel Alito and Clarence Thomas, were sympathetic to the Republican arguments.
The position of other conservatives on the bench, including Chief Justice John Roberts, was harder to read, raising the possibility of a narrower ruling than the one Republican state lawmakers are seeking. The three liberal justices signaled their opposition to the Republican arguments.
Politicians are appealing a North Carolina high court decision to dismiss a map delineating the state’s 14 US House districts, approved last year by the Republican-controlled state legislature, as illegal. biased against Democratic voters.
Republican lawmakers are asking the Supreme Court to adopt a once-fringe legal theory that has won favor with some conservatives, called the “independent state legislature” doctrine. Under that doctrine, they assert that the US Constitution gives state legislatures and not other entities, such as state courts, authority over election rules and electoral district maps.
Critics have said the theory, if accepted, could upend American democratic norms by restricting a crucial check on partisan political power and confusing voters with rules that vary between state and federal races.
The North Carolina Department of Justice is now defending the actions of the state Supreme Court along with voters and voting rights groups that challenged the road map drawn by Republicans. They are backed by the administration of Democratic President Joe Biden.
“This is a proposal that gets rid of the normal checks and balances in the way big government decisions are made in this country,” said Liberal Justice Elena Kagan, referring to the interplay between the executive, legislative and judicial branches of the government. “And then you might think that you get rid of all those checks and balances at exactly the moment they are needed the most.”
The United States is dealing with sharp divisions over voting rights. Republican-led state legislatures have sought new voting restrictions in the wake of former President Donald Trump’s false claims that the 2020 election was stolen from him through widespread voter fraud.
“Think about the consequences,” Kagan said, “because this is a theory with big consequences.”
Kagan said the theory would free up state legislatures to engage in the “most extreme form of gerrymandering” (drawing electoral districts to unfairly improve a party’s chances of election) while enacting “all sorts of voting restrictions” and enacting ends “all kinds of voter protections.” .
Kagan said state politicians often have incentives to suppress, dilute and nullify votes in order to win re-election. The judge added that the theory could also free up legislatures to insert themselves into certifying federal elections, a sensitive issue in light of the uproar at the US Capitol over the victory.
Alito dismissed arguments that state legislatures would not be controlled if the Republican position prevailed.
Referring to the US Constitution’s language on elections, Alito said: “Under any circumstances, no matter what we say the ‘Elections Clause’ means, Congress can always come in and set the way to carry out hold the congressional elections.
“The reason we have a case is that the power doesn’t just come from the state constitution, it comes from the federal Constitution, which empowers the legislature to take effect,” Roberts said.
‘Authority is missing’
David Thompson, a lawyer for state politicians, told the judges that the Constitution “requires that state legislatures specifically perform the federal role of making rules for federal elections. States lack the authority to restrict the substantive discretion of the legislature in performing this federal function.”
The eventual Supreme Court decision, scheduled for the end of June, could apply to the 2024 elections, including the presidential race.
The doctrine advanced in the Republicans’ appeal is based in part on language in the US Constitution which provides that the “times, places, and manner” of federal elections “shall be prescribed in each state by the legislature thereof.”
Roberts noted that state legislators had conceded that, even under his legal theory, the Constitution would still allow a state governor to veto any measure passed by the state legislature.
“Giving the power to veto the legislature’s actions significantly undermines the argument that it can do whatever it wants,” Roberts said.
Republican politicians have argued that the state court unconstitutionally usurped the authority of the North Carolina General Assembly to regulate federal elections. Thompson also argued that state constitutions cannot place substantive limits on the actions of legislatures in federal elections.
Conservative Justice Brett Kavanaugh said Thompson’s position on the “independent state legislature” theory “seems to go further” than that envisioned by former Chief Justice William Rehnquist, who helped originate the theory. Rehnquist’s opinion in Bush v Gore in 2000, a court case that decided that year’s presidential election, asserted that state courts were exceeding their authority with respect to federal elections.
Elizabeth Prelogar, defending the Biden administration, said that empowering state legislatures the way Republican lawmakers want would “wreak havoc with the administration of elections across the country.” He warned that it would lead to federal courts being inundated with lawsuits asking them to intervene in state-administered elections.
Neal Katyal, arguing on behalf of voting rights groups, said that accepting the “independent state legislature” theory would mean that, for 233 years, the electoral language of the US Constitution has been read incorrectly.
Thomas questioned whether Katyal, who served as acting attorney general under former Democratic President Barack Obama, would be making the same arguments if the North Carolina Supreme Court had struck down a congressional map that was “very, very generous to the voters of the minorities”.
The North Carolina legislature approved its map by Congress in November 2021. Two groups of plaintiffs filed a lawsuit, arguing that the map violated the state’s constitutional provisions on free elections and freedom of assembly, among others.
The North Carolina Supreme Court struck down the map in February. A lower state court later rejected the legislature’s redrawn map and adopted one drawn up by a bipartisan think tank.
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