Justices seem poised to hear elections case

The Supreme Court seems poised to take on a new elections case being pressed by Republicans that could increase the power of state lawmakers over races for Congress and the presidency, as well as redistricting, and cut state courts out of the equation.

The issue has arisen repeatedly in cases from North Carolina and Pennsylvania, where Democratic majorities on the states’ highest courts have invoked voting protections in their state constitutions to frustrate the plans of Republican-dominated legislatures.

Already, four conservative Supreme Court justices have noted their interest in deciding whether state courts, finding violations of their state constitutions, can order changes to federal elections and the once-a-decade redrawing of congressional districts. The Supreme Court has never invoked what is known as the independent state legislature doctrine, although three justices advanced it in the Bush v. Gore case that settled the 2000 presidential election. “The issue is almost certain to keep arising until the Court definitively resolves it,” Justice Brett Kavanaugh wrote in March.

It only takes four of the nine justices to agree to hear a case. A majority of five is needed for an eventual decision.

Many election law experts are alarmed by the prospect that the justices might seek to reduce state courts’ powers over elections.

“A ruling endorsing a strong or muscular reading of the independent state legislature theory would potentially give state legislatures even more power to curtail voting rights and provide a pathway for litigation to subvert the election outcomes expressing the will of the people,” law professor Richard Hasen wrote in an email.

But if the justices are going to get involved, Hasen said, “it does make sense for the Court to do it outside the context of an election with national implications.”

The court could say as early as Tuesday, or perhaps the following week, whether it will hear an appeal filed by North Carolina Republicans.