WASHINGTON (CN) — Two cases on the Supreme Court’s shadow docket are pushing a theory that could upend elections as Americans know them.
Last week Republicans from North Carolina’s General Assembly appealed to the high court to block a ruling from the state Supreme Court condemning their new congressional map for partisan gerrymandering. Not even a week later, a similar request came in from Pennsylvania. The applications ask the court if state legislatures can rule supreme over federal elections in a controversial theory that would abdicate power from state courts.
The independent state legislature claim, as it has been coined, would strip state courts of their power to review redistricting matters.
“The applications in the North Carolina and Pennsylvania cases offer an incredibly a far-reaching interpretation of the Constitution that would prevent state courts from enforcing their own state constitutions to protect voting rights,” David H. Gans, director of the human rights, civil rights, and citizenship program at the Constitutional Accountability Center, said in a phone call.
Dating back to Bush v. Gore, experts warn if the theory is embraced it could allow partisan legislatures to decide elections.
“It puts American democracy in even greater jeopardy than it has been because it would enable partisan legislatures … to decide not just where district lines are drawn, but whether to accept the results of elections,” Michael Dorf, a constitutional law professor at Cornell, said in a phone call.
In their application, North Carolina assembly members say that the Constitution gives the “legislature” priority in federal elections and that its power can only be checked by Congress.
“The Constitution thus grants the state ‘Legislature’ primacy in setting the rules for federal elections, subject to check only by Congress,” the application states. “And there can be no question that this specific delegation of power to state legislatures encompasses the authority to draw the lines of congressional districts.”
However, experts say when “legislature” is referred to, they don’t just mean the legislative body but the lawmaking process which would include judicial review.
“When the Constitution refers to the legislature of each state, it doesn't mean literally the legislature in isolation from all of the other structures of the state,” Dorf said.
Experts point to Bush v. Gore for one of the earliest utterances of this theory and it appears some current justices on the court may have adopted that thinking. The North Carolina Republicans even cite Justice Neil Gorsuch in their brief.
“‘The Constitution provides that state legislatures — not federal judges, not state judges, not state governors, not other state officials — bear primary responsibility for setting election rules,’” their application states quoting an opinion by Gorsuch.
In the applications from North Carolina and Pennsylvania, the court could essentially block the last available path to address partisan gerrymandering.
“The idea that the state legislature must be supreme and that state courts don't have a role would fundamentally alter the system of jurisprudence we've had,” Gans said. “I think, most importantly, it would prevent state courts from enforcing state constitutional rights, which is hugely important, and it would eliminate one of the last available checks on partisan gerrymandering.”
Similar theories were also advanced in litigation following the 2020 election.
“I think we saw very aggressive indications of this idea in 2020,” Gans said. “They weren't decisive, but I think given some separate opinions that were written in those cases, we’re now seeing a host of challenges that are really pushing this far-reaching theory to limit the ability of state courts to address partisan gerrymandering.”
The logic here is the same as used to advance a claim by the Wisconsin Legislature that could commandeer a presidential election. They claim they choose to reject the state’s vote and substitute their own choice of electors instead.
“The Wisconsin Legislature has recently claimed that they could in a presidential election choose, by whatever standard they want to, to reject the state's vote and substitute their own choice of electors without any participation by the governor,” Dorf said. “The logic is exactly the same.”
These cases present another notch in a longer trend that stands to get rid of neutral election architecture and give partisan bodies more control over elections.
“It was a basically saying, well, we get to set the standard about whether we think the election was fair or not,” Dorf said. “This I think would be part of a larger trend of displacing rickety — at least until now — largely neutral architecture elections with a very severe risk of self-dealing.”
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