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State judges offer rare input as high court tackles redistricting case

The brief from America's leading judicial authority flattens a controversial theory that could alter authority over election laws. 

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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Breaking down the lawmakers’ argument, the conference said the question before the court is if the Elections Clause removes state courts from their traditional role in reviewing election laws under state constitutions. The conference contends it does not. 

The Elections Clause does give state legislatures the authority to enact state laws governing federal elections and gives Congress the authority to override those laws, but it doesn’t interfere with the states’ authority to structure their governments, the brief claims. The conference said this includes the process for determining state laws — which involves judicial review by state courts. 

“The States’ power to authorize state courts to interpret all state statutes definitively and to determine whether those statutes comply with state constitutions is neither a ‘power[] … delegated to the United States by the Constitution, nor [a power] prohibited to the States,’” the conference says. “Thus, the States’ power to structure their governments to include judicial review is also protected by the Tenth Amendment.” 

While the text of the Elections Clause references the state’s “legislature,” the conference uses historical context to highlight that the framers did not intend for all other branches of government to be precluded. 

“When the Framers intended to give unreviewable authority to a specific branch of government, they did so clearly,” the conference wrote. 

But the framers did not only give power to state legislatures in the Elections Clause; they also gave power to Congress. The conference said no party is claiming that courts can not review Congress’ laws related to federal elections, so the same should be applied at the state level. 

“All agree that the Elections Clause’s reference to ‘Congress’ does not preclude judicial review of Congress’s regulation of federal elections,” the conference wrote. “Thus, the reference to the state ‘Legislature’ likewise should not be read to preclude state judicial review of the laws enacted by state legislatures.”  

The conference also disagrees with lawmakers’ claim that courts would be usurping the legislature’s lawmaking authority by reviewing election laws. Judicial review is a check on lawmaking, not actual lawmaking itself. 

“State court adjudication, while a form of check on the legality of lawmaking, is not itself lawmaking,” the conference wrote. “It is the exercise of judicial power.” 

After laying out their argument against the court adopting the independent state legislature theory, the conference stipulates that, if the justices still decide to do so, the court needs to be deferential to state courts. 

“Even if this Court determines that the Elections Clause authorizes federal judicial review of state court decisions about state elections law, such review should be rare, highly deferential, and under a clear standard to avoid undue intrusion on the state courts’ prerogatives,” the conference wrote. 

A number of other amicus briefs were submitted in the case this week aggressively pushing the court toward curbing state court power. Although the conference’s brief was not submitted in response to those appeals, it answers them all the same. 

“What's remarkable about many of the other briefs that came in last night … is they take a very aggressive posture towards state courts and state Supreme Courts in particular," Wolf from the Brennan Center said. "And so, although this brief was filed at the same time and couldn't possibly directly respond to those briefs, it actually lays out an evenhanded and very effective rejoinder to much of the argument leveled by the amici who are filling in support in North Carolina legislators.”

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