In recent weeks, the Supreme Court of the United States has massively reshaped American society with a wave of opinions that, among other things, ended five decades of federal protection of the right to abortion, reduced restrictions on firearms and limited the regulatory power of the federal government.
The court’s decisions this term demonstrate, more clearly than ever, the real consequences of former President Donald Trump’s influence in cementing a conservative supermajority on the Supreme Court.
And the Trump-shaped supermajority is just getting started.
Next term, he has the opportunity to explode more than 100 years of election jurisprudence by adopting a sweeping legal theory that would concentrate power on elections to increasingly polarized and gerrymandered state legislatures. (Gerrymandering is the drawing of legislative district boundaries to favor one political party over another.)
The court announced Thursday that the next term it will hear from Moore v. Harper, in which Republican North Carolina state lawmakers are asking the court to overturn a North Carolina Supreme Court ruling overturning the Congressional cards. of the legislature because they were unfairly biased in favor. of the Republicans and to order a map drawn by outside special masters to be used for the 2022 elections.
“We all know that both sides gerrymander when they can, and the courts have stood up this year like they haven’t before,” Michael Waldman, president of the Brennan Center for Justice, told reporters during an interview. a phone call on Thursday. “That would cut that at the knees.”
State legislatures with unlimited power could be ‘checkmate’ for 2024
North Carolina House Speaker Tim Moore is asking the court to overturn the state Supreme Court’s decision under a once obscure legal notion that entered the mainstream in 2020, known as the name of doctrine or theory of the independent legislature of the state.
The Elections Clause of Article I of the Constitution states that “the times, places, and manner for the holding of elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof”. The ISL theory claims that the clause only gives state legislatures and no other authorities — like courts, leaders, or election officials — jurisdiction over redistricting and election laws.
Justices Clarence Thomas, Samuel Alito and Neil Gorsuch have indicated their willingness to seriously consider the argument underlying the theory in the cases concerning the 2020 election and the North Carolina redistricting that have come to court through the through the emergency appeal process, or “phantom file”.
The Supreme Court’s adoption of the theory would have far-reaching implications beyond redistricting, upending nearly every aspect of how a US election is run.
This could prevent state courts from ruling on all manner of election laws, governors from issuing executive orders on election laws, and election officials from interpreting election rules and issuing regulations, as did many of these bodies during COVID-19. pandemic.
In the worst case, it could even allow a legislature to meddle or overturn a presidential election.
“It’s entirely possible that the courts will have the votes to approve a theory that would give state lawmakers absolute control over election administration, which would be a checkmate for the 2024 election,” Gaby Goldstein said. , co-founder of Sister District, a progressive group that focuses on state legislatures, told Insider, citing existing GOP majorities in swing states like Georgia, Pennsylvania and Wisconsin.
Indeed, Trump himself and his allies leaned heavily on the theory in their aggressive bid to nullify the 2020 election, arguing that courts and governors striking down or shaping election laws were a reason to invalidate the results. whole-state elections in the states that voted for President Joe Biden. .
But legal experts argue that the notion is in direct contradiction to the express intention of the architects of the Constitution, especially James Madison, to restrict the unchecked power of state legislatures over elections with the election clause.
“He said that whenever state legislatures had a favorite measure to pass, they would deal with how to shape the regulations to favor the candidates they wanted to pass,” Waldman said, citing Madison. “We couldn’t put it better. We think it’s a dangerous notion. And it would bring chaos to our election laws.”
He added: “It would be an extraordinary power grab by the political players if he were to be confirmed.”
“ISL is as invented as anything I know in constitutional law”
Helen White, the lawyer for Protect Democracy, told reporters that the strict and narrow reading of the “legislature” posited by proponents of the theory “is not supported at all by the text of the Constitution, the original understanding of the Constitution, 200 years of electoral practice here, and Supreme Court precedent as recently as 2019.”
Over the past decade, the court has dismissed an ISL argument in pushing back a challenge from Arizona’s Independent Redistricting Commission in 2015 and ruled in Rucho v. Common Cause in 2019 that partisan gerrymandering cases are non-justiciable political matters barred from federal courts and must be resolved in state courts.
But for the court to side with North Carolina would also deprive state courts of the ability to act as a check against partisan gerrymandering by their elected representative bodies.
“The Court would look so bad if they kissed ISL after they threw Roe under the bus for wearing makeup,” said Vikram Amar, dean and Iwan Foundation law professor at the University of Illinois. “The ISL is as compound as anything I know of in constitutional law. The ISL is not only incompatible with the deep premises of federalism, it is exactly backwards.”
Waldman also argued that accepting the theory would not only “sow chaos” but would represent an “extraordinary rebuke” to the court conservatives’ stated commitment to originalism.
“To say that because the word ‘legislature’ appears in a provision intended to curb the legislature means the legislature has all the power is Amelia Bedelia, not legal theory,” Waldman said. ” It’s crazy. It is a deliberate and comedic misinterpretation of what the text, structure, history, purpose, meaning and objectives of the constitutional provision are. And that’s as clear as any case they hear next year.”
Helen White has stated that the theory of independent state legislature is not best described as a singular theory, but as encompassing many possible lines of argument. The Arizona case the Supreme Court ruled on in 2015, for example, challenged the creation of a redistricting commission through a direct ballot initiative because it improperly froze the legislature.
Because of this complexity, she argued that the court adopting a version of the theory would not necessarily give state legislatures “license to stage a coup” in 2024, as some have suggested, but could be “potentially extremely damaging to elections” and “cause a great deal of disorder.”
Court could translate ‘fever dream into law’
Thomas Wolf, deputy director of the Brennan Center’s democracy program, noted that it only takes four judges to agree to hear a case, but five to decide, saying, “The fight is not over.”
Amar said the shadow case, where three conservative justices have expressed openness to ISL, does not provide the same level of rigor and scrutiny as a case heard on the merits, which includes oral arguments, briefs legal and “public surveillance brilliance.”
“It’s much easier to shoot each other in a deal or a dissent,” he argued. “It’s going to be really tough if someone sits down trying to write an opinion embracing ISL.”
Wolf also argued that the court removing state judicial review of election laws would put him in the undesirable position of resolving messy election disputes at the state level that he might not want to resolve.
“I’m not sure they care,” Goldstein told Insider. “Anyone who clings to a very nostalgic notion of the court is working under a false pretense at this point. This court has shown a willingness to move away from precedent for decisions and territory that undermine its credibility.”
In its majority opinion overturning Roe v. Wade, Alito argued that the court’s decision “allows women on both sides of the abortion issue to seek to influence the legislative process by influencing public opinion, lobbying legislators, voting and by standing for election”. adding: “Women are not without electoral or political power.”
But the court removing safeguards against gerrymandering and political manipulation in Moore’s elections could erode or outright nullify the ability of women, and all citizens, to choose their representatives in fair constituencies.
“We will all suffer if the court follows through on turning North Carolina lawmakers’ fever dream into law,” Wolf said.
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