WASHINGTON (CN) — Months after the Supreme Court agreed to review a theory that could upend judicial review of election laws, the state justices from the highest courts in all 50 states have taken the unusual step of reaching out to the court in opposition to the principle.
The Conference of Chief Justices — a leading national voice on the role of state courts — urged the Supreme Court in an amicus brief filed Tuesday to discount the theory advanced by Republican lawmakers in North Carolina that would block state court review of their new congressional map. Under the independent state legislature theory, the lawmakers led by Speaker Tim Moore contend that state courts cannot provide a check on the Legislature’s election laws.
Rather than support either party in the case, the conference specified that it would instead provide an unbiased analysis of why the justices should not adopt the controversial theory. Input from the conference is rare and highlights the serious nature of the case.
“The Conference of Chief Justice's brief is very important in this case because … the conference is deeply respected as sort of the authoritative voice on the interests of the state courts and the U.S. legal system because of their membership — which is current and former chief judges,” Tom Wolf, deputy director of the Brennan Center's democracy program, said in a phone call. “They rarely file, so when they weigh in the very fact of weighing in is indicating their perception of a serious issue.”
The conference also provides a unique view on the issue before the court. The justices will be reviewing a ruling from a state Supreme Court. The high court normally allows state courts to have the final word on what state law is.
“The chief judges of the state courts are in many respects the closest equivalent that we will find to federal Supreme Court justices,” Wolf said. “So these are folks that are speaking, in large part, as the court’s peers. They have a unique perspective that's really unrivaled and hard to replicate in any sort of legal dispute.”
North Carolina state lawmakers claim the Constitution’s Elections Clause grants the legislature priority in making the rules for federal elections and can only be checked by Congress. To support this argument, lawmakers cite the text of the Elections Clause — which states that “the Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature.”
“The text of the Constitution assigns to state legislatures alone the authority to regulate the times, places, and manner of congressional elections — including the authority to draw congressional districts,” the North Carolina lawmakers wrote in their brief to the court. “Both the plain text and its drafting history demonstrate that this choice was deliberate.”
Moore says the state court’s review of the Legislature's congressional map would interfere with the Legislature’s role prescribed by the Constitution. The North Carolina Supreme Court shot down the Legislature’s congressional map for partisan gerrymandering. In doing this, the lawmakers say the court, therefore, decreed that upcoming congressional elections would not be held in the manner prescribed by the legislature but instead prescribed by the state’s judicial branch.
For the conference, however, this view is not only an incorrect reading of the Constitution’s text but inconsistent with history and precedent.
“Neither the textual reference to the ‘Legislature,’ nor contemporary historical understandings and practices, nor the Framers’ intentions, nor structural norms, nor this Court’s precedent supports the view that the Elections Clause displaces the States’ power to authorize their state courts to review their legislature’s regulations of congressional elections for conformity with their state constitutions, and to issue appropriate remedies,” Carter Phillips, an attorney with Sidley Austin, wrote in the conference’s brief.
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