Radical election theory tested at Supreme Court
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.”