SCOTUS weighs powers over elections
WASHINGTON >> The Supreme Court is about to confront a new elections case, a Republican-led challenge asking the justices for a novel ruling that could significantly increase the power of state lawmakers over elections for Congress and the presidency.
The court is set to hear arguments Wednesday in a case from North Carolina, where Republican efforts to draw congressional districts heavily in their favor were blocked by a Democratic majority on the state Supreme Court because the GOP map violated the state constitution.
A court-drawn map produced seven seats for each party in last month’s midterm elections in highly competitive North Carolina.
The question for the justices is whether the U.S. Constitution’s provision giving state legislatures the power to make the rules about the “times, places and manner” of congressional elections cuts state courts out of the process.
“This is the single most important case on American democracy — and for American democracy — in the nation’s history,” said former federal judge Michael Luttig, a prominent conservative who has joined the legal team defending the North Carolina court decision.
The Republican leaders of North Carolina’s legislature told the Supreme Court that the Constitution’s “carefully drawn lines place the regulation of federal elections in the hands of state legislatures, Congress and no one else.”
Three conservative justices already have voiced some support for the idea that the state court had improperly taken powers given by the Constitution when it comes to federal elections. A fourth has written approvingly about limiting the power of state courts in this area.
But the Supreme Court has never invoked what is known as the independent state legislature theory. It was, though, mentioned in a separate opinion by three conservatives in the Bush v. Gore case that settled the 2000 presidential election.
If the court were to recognize it now, opponents of the concept argue, the effects could be much broader than just redistricting.
The most robust ruling for North Carolina Republicans could undermine more than 170 state constitutional provisions, over 650 state laws delegating authority to make election policies to state and local officials, and thousands of regulations down to the location of polling places, according to the Brennan Center for Justice at the New York University School of Law.
Luttig, who advised former Vice President Mike Pence that he had no authority to reject electoral votes following the 2020 election, is among several prominent conservatives and Republicans who have lined up against the broad assertion that legislatures can’t be challenged in state courts when they make decisions about federal elections, including congressional redistricting.
That group includes former California Gov. Arnold Schwarzenegger, law professor Steven Calabresi, a founder of the conservative Federalist Society and Benjamin Ginsberg, a longtime lawyer for Republican candidates and the party.
“Unfortunately, because of ongoing and widespread efforts to sow distrust and spread disinformation, confidence in our elections is at a low ebb,” Ginsberg wrote in a Supreme Court filing.