The Supreme Court rejected a radical argument put forward by North Carolina Republicans who sought to give nearly unlimited power over federal elections to state legislatures, Chief Justice John Roberts and fellow conservative justices Brett Kavanaugh and Amy Coney Barrett joining the three liberals in the court to rule Tuesday that the claims had no merit.
If the court had accepted the GOP’s demands, it would have upset the foundations of more than two centuries of constitutional law. Such an outcome would have enabled new gerrymanders in several states and a torrent of Republican-backed voter suppression in many others ahead of the 2024 election. Worst-case scenario, it could even have allowed republicans to rig the electoral college towards next year.
Like some lawyers observed in response to the decisionthe majority seemed to accept a “milder version” of the GOP argument that could, as electoral law expert Rick Hasen saidallow the Supreme Court “to question the decisions of state courts” in the future if those courts go “too far” in interpreting the rules regarding federal elections under state law.
But the decision nonetheless represents a major loss for Republicans. It is also the second time this month that the court has rejected a far-right bid to shore up GOP gerrymandering and discriminatory voting restrictions: Earlier in June, the court unexpectedly upheld a key element of the Voting Rights Act in a redistricting case regarding discrimination against black voters in Alabama.
Republicans here had appealed a ruling by the North Carolina Supreme Court, which until this year had a Democratic majority. This majority had slaughtered the map of Congress that Republicans had drawn following the 2020 census on the grounds that it violated the state constitution as an illegal partisan gerrymander.
The GOP then appealed to the U.S. Supreme Court to have its card reinstated, advancing mind-blowing doctrine known as the “independent state legislature theory”. This theory, if adopted by the Supreme Court, would deprive state courts of any power to enforce any provision of their state constitution that would limit the ability of legislators to pass laws governing federal elections.
The GOP’s argument centered on a biased reading of the word “legislature” in the part of the US Constitution known as the election clause. This clause said that “the times, places, and manners of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof” unless Congress intervenes to the contrary.
In the eyes of Republicans, only the legislator himself can make such laws and cannot be fettered by any form of democratic control. State courts would therefore not be allowed to rule on the legality of election laws relating to legislative or presidential elections (although federal law still prevents states from retroactively annul the results of the presidential election as Donald Trump had tried after his defeat in 2020).
And taken to its logical conclusion, governors would also lose the power to veto these laws — in fact, they wouldn’t even have to sign them in the first place. Similarly, voters would no longer be able to use ballot initiatives to pass laws affecting federal elections, such as those creating independent redistricting commissions.
This position is not only extreme to the extreme, it has no historical basis, as extensive research has shown. This is totally at odds with how federal and state constitutional law have interacted since the very establishment of the Constitution, which sought to replace the hopelessly flawed Articles of Confederation and strengthen national government by removing the power of veto. unilateral from each state. As scholars of the founding era notedit makes no sense to think that the framers wanted to do this while simultaneously leaving state legislatures unbound by the very constitutions of the states that created them.
The Supreme Court had indeed previously repudiated this tortured interpretation of the word “legislature”. in a 2015 decision in Arizona. In this case, Republican lawmakers sought to invalidate the Independent Redistricting Commission that voters had passed through a self-initiated vote so that the GOP could instead gerrymand the state’s congressional map. But the court asserted that the word “legislature” refers to all those empowered by state constitutions to shape laws, which necessarily includes governors, courts and the voters themselves.
While that ruling should have apparently torpedoed the entire GOP legal argument, two 5-4 majority justices who made that ruling, Ruth Bader Ginsburg and Anthony Kennedy, have since been replaced by much more up-to-date Trump appointees. their right. And later, when Republican lawmakers appealed a Pennsylvania Supreme Court decision relying on the state constitution to relax mail-in voting rules shortly before the 2020 election, the Supreme Court the United States marked its opening to adopt the theory of independent state legislature in the future.
In that case, the federal court deadlocked 4-4 and left the state decision in place, with Roberts joining three liberal justices while four conservatives would have ruled for one version of the theory. The fifth Conservative, Trump-appointed Amy Coney Barrett, did not participate because she had just been seated, but her addition to the court suggested there could soon be five votes in favor of a some form of doctrine.
That didn’t happen, however, thanks to Kavanaugh and Barrett siding with Roberts and the Liberals. However, North Carolina Republicans will still be able to attract new gerrymanders for 2024 as their party won control of the state Supreme Court in 2022; soon after, they reversed the previous Democratic majority decision that invalidated the GOP Congressional map. Lawmakers, the state court said, were now free to gerrymander without limit.
And while the Supreme Court of the United States has just inflicted a major defeat on the Republicans, uncertainty hangs over the a loosely defined power that judges have just attributed to decisions of police state courts that relate to laws governing federal elections. However, experts are divided on the threat posed by this possibility. Hasen called Tuesday’s decision a “bad, but not terrible, outcome,” while in response to the assessment, constitutional law scholar Michael Dorf described it as “a good enough, but not wonderful, result”, noting that the majority had “killed the most dangerous versions” of the independent state legislature theory.
Whichever opinion is correct, the ideas that drive this theory remain very much alive in right-wing legal circles. And as we have seen with abortion, the right will keep kicking down the door of the courthouse until their point of view is one day accepted. Defenders of democracy must therefore be on their guard against the possible return of this extreme and risky argument.
This article has been updated to reflect additional analysis from legal experts regarding the Supreme Court’s decision.
