Supreme Court to review power of state legislatures in federal elections

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The Supreme Court said Thursday it would consider what would be a fundamental change in the way federal elections are conducted, giving state legislatures sole authority to set the rules for contests even if their actions violated state constitutions and resulted in extreme partisan gerrymandering for seats in Congress.

The case, from North Carolina, could have a huge impact on the 2024 election, and is the second major election law case the justices will consider in the term that begins in October. They have already taken up a case in Alabama that will allow them to reconsider the scope of the Voting Rights Act of 1965, which prohibits discriminatory voting practices or procedures on the basis of race.

Once again, Alabama is the battleground for black voting rights

Both cases were brought by Republicans challenging unfavorable rulings in lower courts. In North Carolina, Republicans want to restore a redistricting map that was drawn by the GOP-led legislature but dismissed as a violation of the state constitution by the state Supreme Court.

“This case has the potential to fundamentally rework the relationship between state legislatures and state courts in protecting the right to vote in federal elections,” liberal election law expert Richard Hasen wrote on his Election Law blog. “It could also pave the way for electoral subversion.”

In March, the Supreme Court let the North Carolina High Court decision stand in the upcoming fall election. But three of the court’s conservative judges at the time said they were skeptical. State courts had a role to play in arbitrating the rules for federal elections, and a fourth said the issue was ripe for review.

State courts played an influential role in congressional redistricting battles after the 2020 census. Judges reined in Republican gerrymanders in North Carolina and Pennsylvania, for example, and rejected maps drawn by led legislatures by Democrats in New York and Maryland.

Supreme Court denies GOP request to strike down congressional maps in North Carolina, Pennsylvania

But the effort to have the Supreme Court consider what is called the independent state legislature doctrine was a Republican-led effort. The GOP controls both houses of the legislature in 30 states.

The doctrine originates from the Elections Clause of the U.S. Constitution, which states that “the times, places, and manner of holding elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof.” Although most often invoked in the redistricting process, the doctrine of an independent state legislature would also give lawmakers control over matters such as voter qualification, mail-in voting, and other electoral procedures. .

In the past, this has been widely interpreted as giving this power to the states, but in a shared way between the residents and the executive, legislative and judicial branches.

Democrats’ redistricting gains hit a snag: Supreme Court

In election disputes leading up to the 2020 presidential election, Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch, and Brett M. Kavanaugh expressed support for the view that state courts could not usurp the role of the legislature in prescribing rules for federal elections.

In March, Alito said he would block the North Carolina court’s passage of the new congressional map and that he believed the legislature had the best case.

“If the language of the election clause is taken seriously, there must be some limit the power of state courts to overrule actions taken by state legislatures when prescribing rules for the conduct of federal elections,” Alito wrote, joined by Thomas and Gorsuch. “I think it is likely that the petitioners will succeed in demonstrating that the North Carolina Supreme Court exceeded those limits.”

Kavanaugh did not agree to block the state’s legal action, saying it was too close to the election. But he said the matter should be considered next term.

Supreme Court says federal courts have no role in deciding partisan gerrymandering claims

In a 2019 ruling, all members of the court — including Thomas, Alito, Gorsuch and Kavanaugh — appeared to consider a role for state courts. In dismissing the role of federal courts in settling partisan gerrymandering lawsuits, Chief Justice John G. Roberts Jr. clarified that challenges could go through state courts.

“The provisions of state statutes and constitutions can provide standards and guidance for state courts to apply” in policing partisan gerrymandering, Roberts wrote for the majority in Rucho c. Common cause.

In 2015, the court ruled that the constitution’s Elections Clause did not prevent Arizona voters from giving an independent commission, rather than the legislature, the power to designate congressional districts.

“Nothing in this clause directs, and this court has never held, that a state legislature may prescribe regulations as to the time, place, and manner of holding federal elections in disregard of the provisions of the state constitution,” Judge Ruth Bader Ginsburg wrote for the five-member majority in Arizona State Legislature v. Arizona Independent Redistricting Commission.

Liberal Ginsburg died in 2020 and was replaced by conservative Justice Amy Coney Barrett, who will likely play a central role in the outcome of the new challenge.

North Carolina is a purple state, with a Republican-controlled legislature, a Democratic governor, and an elected state Supreme Court with four Democrats and three Republicans. Donald Trump won the state in 2020 by a 50% to 49% margin over Joe Biden.

Analysts said the map created by Republican lawmakers after the 2020 census would have given the GOP an advantage in 10 of 14 congressional districts. Democratic justices of the state’s elected Supreme Court said the redistricting maps had a partisan slant “unexplained by the political geography of North Carolina.”

The court found that the maps “are unconstitutional beyond a reasonable doubt under the free elections clause, the equal protection clause, the freedom of speech clause and the freedom of assembly clause. of the North Carolina Constitution”.

The state’s Republican legislative leaders told the Supreme Court in their petition that state courts do not have the power to second guess the legislature.

“By its plain text, the Elections Clause creates the power to regulate the times, places, and manner of federal elections, and then vests that power in the ‘legislature’ of each state,” they wrote. “It does not leave states free to limit the power constitutionally vested in the legislature, or to place it elsewhere in the machinery of state government, as a matter of state law.”

But the state Justice Department said North Carolina presented a poor example for the Supreme Court to consider. That’s because the legislature itself granted state courts a role in redistricting, they say.

“Two decades ago, the North Carolina General Assembly passed legislation expressly codifying the authority of state courts to review legislative redistricting efforts,” the state brief reads. “At the same time, the legislature has expressly authorized state courts to “impose a provisional precinct plan” in situations like the one that gave rise to this appeal. The North Carolina state courts have therefore not “taken it upon themselves to make” the rules for federal elections – the state legislature itself has devised a statutory redistricting scheme that expressly contemplates the court involvement.

The deal is Moore v. Harper.

Ann E. Marimow contributed to this report.


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