The Week (US)

Radical election theory tested at Supreme Court

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What happened

Conservati­ve Supreme Court justices voiced unexpected­ly strong skepticism of a GOP-backed legal theory that could radically upend centuries of election law precedent this week. During contentiou­s oral arguments in Moore v. Harper, North Carolina Republican legislator­s urged the court to restore a heavily gerrymande­red election map that the state’s own top court struck down last year. They invoked the Independen­t State Legislatur­e doctrine, which holds that the Constituti­on gives state legislatur­es near-absolute authority to regulate elections. Its endorsemen­t by the court could invalidate hundreds of election laws. Brett Kavanaugh, despite past support for the idea, criticized the legislator­s for going farther than Chief Justice Rehnquist went in 2000 when he supported checks on the power of state courts in Bush v. Gore. Amy Coney Barrett seemed similarly doubtful, arguing that a “judicially manageable standard” for limiting court involvemen­t in election law would be hard to determine.

The court’s three liberal justices warned that the doctrine threatened the democratic process. Elena Kagan argued it could even allow legislator­s to interfere with the certificat­ion of a presidenti­al election, adding “it gets rid of all those checks and balances at the time we need them most.” Conservati­ves Neil Gorsuch and Samuel Alito, on the other hand, appeared more sympatheti­c to an expansive interpreta­tion of the Independen­t State Legislatur­e theory, with Alito apparently open to imposing limits on state supreme courts’ power to shape election law. A decision is expected by next June.

What the columnists said

The Supreme Court has repeatedly rejected this “utterly nonsensica­l” theory for a century, said Ian Millhiser in Vox. The clause in the Constituti­on entrusting election law to each state’s “legislatur­e,” was widely understood in the 18th century to mean all bodies that make and modify laws—including the governor and the state courts. The Independen­t State Legislatur­e doctrine would greenlight unlimited partisan power plays by state legislatur­es— right down to “canceling” the state’s presidenti­al vote.

A legislatur­e is “the most democratic branch of government,” said The Wall Street Journal in an editorial. But in North Carolina, the Democratic-dominated state supreme court used a vague guarantee of “free elections” to substitute the legislatur­e’s maps with its own. This judicial overreach should be checked. The “partisan implicatio­ns” are overblown: New York’s supreme court similarly, and unjustifia­bly, struck down a map created by Democrats. Ignore “panicked” claims about legislatur­es subverting presidenti­al elections. Any such case would be “a loser in federal court.”

It’s not panic, said Ari Berman in Mother Jones—“the most aggressive version” of this doctrine would give state legislatur­es truly “unchecked” power. Fortunatel­y, “there may not be five votes” for that: Chief Justice John Roberts argued that a 1932 case endorsing a governor’s veto power on redistrict­ing maps “significan­tly undermines” the theory. Kavanaugh and Barrett also appeared to resist giving broad backing to a theory that would give state legislatur­es “king-like status to rig future elections.”

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