Washington — The Supreme Court is hearing arguments Wednesday in afrom North Carolina that has brought warnings from experts of the disruptions it could cause to elections nationwide and unchecked power it could give to state legislatures over voting rules.
Known as, the case stems from the redrawing of the congressional map by North Carolina’s GOP-led legislature in the wake of the 2020 Census, which was struck down by the state supreme court as an extreme partisan gerrymander that violated the North Carolina Constitution.
But at the heart of the dispute lies a little-known doctrine called the “independent state legislature theory,” which largely laid dormant for more than 15 years but was thrust back into the spotlight when it was raised by former President Donald Trump and his allies as part of efforts to overturn the results of the 2020 presidential election.
Under the theory, which the Supreme Court is being urged to adopt by North Carolina Republican leaders, the Constitution grants exclusive authority to state legislatures for setting federal elections rules, without oversight from state courts to ensure those laws comply with state constitutions.
A version of the theory was invoked in 2000 by then-Chief Justice William Rehnquist in his concurring opinion in Bush v. Gore, and more than two decades later, three of the Supreme Court’s conservative justices — Samuel Alito, Clarence Thomas and Neil Gorsuch — have expressed support for the idea. A fourth, Justice Brett Kavanaugh, urged the court to hear a case raising the issue of whether state courts are powerless to review the actions of state legislatures in issues involving federal election rules and maps.
Heading into oral arguments, though, it’s unclear whether a majority of the justices is ready to endorse the theory, and some court watchers are skeptical the Supreme Court will do so.
For North Carolina Republicans, the crux of their argument lies with the text of the Constitution’s Elections clause, which provides that the manner of federal elections shall “be prescribed in each state by the Legislature thereof,” and turns on the word “Legislature.”
“That textual choice has an obvious and unavoidable consequence: the power to regulate federal elections lies with state legislatures exclusively,” lawyers for North Carolina Republican leaders said in a brief filed with the Supreme Court.
Pointing to the history, text of the Constitution, and Supreme Court precedent, the GOP state lawmakers claimed the Constitution’s “carefully drawn lines place the regulation of federal elections in the hands of state legislatures, Congress, and no one else.”
But voting rights groups, North Carolina voters and state elections officials, too, told the Supreme Court that founding-era history, post-ratification history, constitutional text, structure and Supreme Court precedent all cut against their Republican opponents’ position that state legislatures have absolute authority in setting federal elections rules.
“It is rare to encounter a constitutional theory so antithetical to the Constitution’s text and structure, so inconsistent with the Constitution’s original meaning, so disdainful of this Court’s precedent, and so potentially damaging for American democracy,” lawyers for the nonprofit organization argued in a brief.
North Carolina voters and voting rights groups, which are urging the court to reject the independent state legislature theory, warned that adopting the GOP-proposed theory would “wreak havoc,” as it would require state elections officials to run two elections simultaneously: one for state elections under state constitutions, and another for federal elections.
While the case derived from the redistricting process in North Carolina, experts warn a decision endorsing the independent state legislature theory would have sweeping ramifications for election rules.
More than 170 state constitutional provisions and 650 state statutory provisions, as well as thousands of administrative regulations issued by election officials, would be at risk, said Tom Wolf, deputy director of the Democracy Program at the Brennan Center for Justice. He also predicted that adopting the independent state legislature would invite more partisan gerrymandering, as state courts would be removed from the process of reviewing congressional district maps under state constitutions.
Ben Ginsberg, a longtime Republican election lawyer, told reporters in a briefing that he doubts the Supreme Court will fully embrace the independent state legislature theory and “let state legislatures go unchecked after 230 years.”
It could instead issue a decision limiting state courts from assuming a legislative function when coming up with remedies for state constitutional violations, he said, echoing a suggestion from professors William Baude and Michael McConnell.
The case has drawn friend-of-the-court briefs from a slew of lawmakers, voting and civil rights groups, lawmakers, historians and scholars, and the opposition to the independent state legislature theory is forceful and bipartisan.
In one notable filing, the Conference of Chief Justices, made up of the chief justices or judges of top courts from all 50 states, told the Supreme Court that the Elections Clause “does not affect States’ decisions to authorize judicial review of state laws, including under state constitutions.”
A number of well-known Republicans, including former federal judge Michael Luttig, former California Gov. Arnold Schwarzenegger and Ginsberg have warned that forbidding state courts from reviewing election laws under state constitutions would imperil the checks and balances that constrain state legislatures when regulating federal elections.
Luttig is a member of the legal team representing the nonprofit groups and voters who are involved in the litigation before the Supreme Court.
A decision from the court is expected by the end of June.
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