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Supreme Court to Hear Case on State Legislatures’ Power Over Elections

WASHINGTON — The Supreme Court announced Thursday it would hear a case that could radically change the way federal elections are conducted by giving state legislators independent power, not subject to review by state courts, to enact election rules that violate federal law enforcement officials. the state constitutions.

The case has the potential to affect many aspects of the 2024 election, including giving the judges the power to influence the presidential race when state courts interpret their constitution to require changes to state election laws.

By tackling the case, the court could overturn nearly every facet of the U.S. electoral process, allowing state legislators to enact new federal election rules, regulations, and districts with little oversight control, potentially creating a chaotic system of disparate rules and regulations. vote eligibility for presidential election.

“The Supreme Court decision will be hugely important for presidential, congressional elections and district districts,” said J. Michael Luttig, a former federal appeals court judge. “And therefore for American democracy.”

Protections against partisan gerrymandering established through state courts could essentially disappear. The ability to challenge new state-level voting laws may be reduced. And the theory underlying the case could open the door for state lawmakers to send their own electoral rolls.

Currently, Republicans have complete control over 30 state legislatures in the country, according to to the National Conference of State Legislators, and were the force behind a wave of new voting restrictions passed last year. And Republican lawmakers in key battlefield states like Wisconsin, Pennsylvania, North Carolina and Texas have used their control over the realignment to effectively hold onto power for a decade.

Democrats, in turn, control only 17 state legislatures.

The case concerns a voting card issued by the North Carolina legislature that was dismissed as partisan gerrymander by the state Supreme Court. Republicans seeking to reinstate the legislative map argued that the state court was powerless to act on the so-called independent state legislature doctrine.

The doctrine is based on a reading of two similar provisions of the United States Constitution. The case pending in the North Carolina case, the… Election clausesays, “The times, places and manner of conducting elections for senators and representatives shall be prescribed in each state by its legislature.”

That means, North Carolina Republicans argued, that the state legislature among state institutions is solely responsible for drafting congressional districts and state courts have no role to play.

The Supreme Court of North Carolina rejected the argument that it had no right to review the actions of the state legislature, saying it “would be contrary to the sovereignty of states, the authority of state constitutions and the independence of state courts, and would have absurd and dangerous consequences”.

In an earlier meeting with the case in March, when the challengers were unsuccessful sought emergency helpthree members of the US Supreme Court said they: the application would have been granted

“This case presents an extremely important and recurring issue of constitutional law, which is the extent of a state court’s authority to overturn rules passed by a state legislature for use in conducting federal elections,” wrote Judge Samuel A. Alito Jr. ., along with Judges Clarence Thomas and Neil M. Gorsuch.

Justice Brett M. Kavanaugh agreed that the question was important† “It is almost certain that the problem will continue until the courts finally resolve it,” he wrote.

But the court should assess it in an orderly manner, he wrote, outside the context of an impending election. He wrote that the court should grant a request for review on the merits “in an appropriate case — in this case from North Carolina or in a comparable case from another state.”

The court has now granted the request in the North Carolina case, Moore v. Harperno. 21-1271, and it will hear arguments in its next term, which begins in October.

Some US Supreme Court precedents tend to undermine the independent state legislature doctrine.

When the court closed the doors of federal courts to claims of partisan gerrymandering in Rucho v. Common Cause in 2019, Chief Justice John G. Roberts Jr., writing for the five most conservative members of the court, said state courts could continue to hear such cases, including in the context of Congressional realignment.

lawyers to defend the North Carolina Supreme Court ruling in the new case said it was a poor means of dissolving the scope of the independent state legislature doctrine, as the legislature itself had empowered state courts to review reclassification legislation.

During the past reclassification cycle, state courts in North Carolina, Ohio and New York dismissed newly drawn maps as partisan gerrymanders. In 2018, the Pennsylvania State Supreme Court rejected Republican-signed congressional districts.

But if the Supreme Court embraced the doctrine, “it would completely rule out the possibility of setting aside reclassification cards on the basis that they would be some sort of partisan gerrymander,” said David Rivkin, a federal expert on constitutional law. who served in the Reagan administration. and the George HW Bush administrations and has supported the independent state legislature doctrine.

It would also leave few remaining avenues through the courts to challenge congressional cards as unconstitutional. Partisan gerrymandering would essentially be legal, and a racial gerrymander would be the only way to take on a challenge.

Embracing the doctrine could also lead to independent redistricting commissions set up by voters through a ballot initiative, such as in Michigan and Arizona, being dismantled and limiting their scope to just the state’s legislative districts.

But a ruling in favor of the independent state legislature doctrine has ramifications that could go far beyond the cards of Congress. Such a decision, legal experts say, could limit a state court’s ability to repeal new voting laws related to federal elections, and limit their ability to make changes on election day, such as extending voting hours. in a location that opened late due to inclement weather or technical problems.

“I just cannot emphasize enough how drastic, how radical and drastic this can be,” said Wendy Weiser, vice president for democracy at the Brennan Center for Justice. “Essentially, no one but Congress should be allowed to curb some of the abuses of the state legislatures.”

The decision to hear the case comes as Republican-led state legislators across the country have sought to remove more authority over election management from impartial election officials and secretaries of state. In Georgia, for example, a law passed last year stripped the secretary of state of significant power, including chair of the state election commission.

Such attempts to gain more partisan control of election administration have worried some voting rights groups that state lawmakers are moving towards taking more extreme steps in elections that don’t go their way, similar to plans hatched by the legal team of former President Donald J. Trump in the waning days of his presidency.

“The Nightmare Scenario”, The Brennan Center wrote in June“is that a legislator, dissatisfied with the way an election official on the ground has interpreted her state’s electoral laws, would invoke the theory as a pretext to refuse to certify the results of a presidential election and select his own electoral roll instead.”

Legal experts note that there are federal constitutional controls that would prevent a legislature from simply stating after an election that it will ignore the popular vote and send an alternate list of voters. But if, for example, the legislature passes a law before an election, setting the parameters by which a legislature could take over an election and direct its list of voters, that could be enforced under the doctrine of the independent state legislature.

“If this theory is embraced, the red state legislatures will be smart and start enacting these things before 2024,” said Vikram D. Amar, the dean of the University of Illinois College of Law. “So the rules are there for them to do what they want.”

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