WASHINGTON — The Supreme Court is about to face a case of snap elections, a Republican-led challenge asking judges to make a novel decision that will significantly increase the power of state legislatures in congressional and presidential elections could strengthen.
The court on Wednesday will hear arguments in a case from North Carolina, where Republicans’ efforts to sway congressional districts heavily in their favor were blocked by a Democratic majority on the state Supreme Court because the GOP map violates the state constitution violated
A court-created map showed seven seats for each party in last month’s midterm elections in hard-fought North Carolina.
The question for the judges is whether the US Constitution’s provision, which gives state legislatures the power to enact rules about the “time, place, and manner” of congressional elections, excludes state courts from the process.
“This is the most important case on American democracy — and for American democracy — in the history of the nation,” 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 the North Carolina Legislature told the Supreme Court that the “carefully drawn lines of the Constitution place the governance of federal elections in the hands of the state legislature, Congress, and no one else.”
Three conservative judges have already expressed some support for the idea that the state court in federal elections improperly usurped constitutional powers. A fourth has written appreciatively of the limitations on state courts’ powers in this area.
Judges will hear arguments in a case from North Carolina, where Republican efforts to sway congressional districts heavily in their favor were blocked by a Democratic majority on the state Supreme Court, AP
But the Supreme Court has never invoked the theory of independent state legislatures. However, it was mentioned in a separate statement by three conservatives in the Bush v. Gore case, which decided the 2000 presidential election.
If the court accepts it now, opponents of the concept argue, the implications could go much further than just redistribution.
The most robust ruling for North Carolina Republicans, according to the Brennan Center, could be more than 170 state constitutional provisions, over 650 state statutes that delegate authority to shape electoral policy to state and local officials, and thousands of regulations down to the location of polling stations Undermined for Justice at New York University School of Law.
Luttig, who told former Vice President Mike Pence that after the 2020 election he would not have the power to refuse electoral votes, is among several prominent Conservatives and Republicans who have opposed the broad assertion that lawmakers cannot be challenged in state courts, when making decisions about federal elections, including re-election of congressional districts.
This group includes former California Gov. Arnold Schwarzenegger, law professor Steven Calabresi, a founder of the conservative Federalist Society, and Benjamin Ginsberg, a longtime advocate for Republican candidates and the party.
“Unfortunately, confidence in our election is at an all-time low due to continued and widespread efforts to sow mistrust and spread disinformation,” Ginsberg wrote in a Supreme Court filing. “The version of independent state legislature theory put forward by the petitioners in this case threatens to make a bad situation far worse, exacerbate the current moment of political polarization and further undermine confidence in our elections.”
The clashes come a day after the final contest of the 2022 Midterms, the Georgia Senate runoff between Democratic Senator Raphael Warnock and Republican Herschel Walker.
In that contest, state courts ruled in favor of Democrats allowing a vote on Republican objections the Saturday before the election.
Michael Luttig is among several prominent Republicans opposing the widespread claim that lawmakers cannot be challenged in state courts when making decisions about federal elections. AP
Jason Snead of the conservative Honest Elections Project said the case is an opportunity for the Supreme Court to rein in runaway state courts that are being pushed by Democratic attorneys to effectively create new rules for voting, including Georgia’s example.
“We’ve seen a fairly pervasive attempt to use courts to rewrite electoral laws when those laws don’t fit partisan agendas,” Snead said in a call with reporters. “We don’t want to see that if it violates the constitution.”
He is among supporters of the High Court’s intervention, arguing that the case poses no “threat to democracy”.
Judges can instead issue narrow opinion that limits state courts without disrupting decisions New York and other states have made to limit Partisan redistribution, a group of New York voters wrote in a court filing.
New Yorkers implicitly acknowledge that Republicans will not necessarily benefit if the court gives the state legislature more powers to draw congressional lines.
During the last redistribution cycle, states that used independent redistribution commissions instead of legislatures were largely dominated by Democrats. The commissions got 95 House seats in states with Democratic legislatures and governors, as opposed to only 12 in states with GOP control. A decision that gives lawmakers ultimate power over redistribution of districts could snuff out those commissions and let Democrats redraw much of the House map.
Benjamin Ginsberg said the fight over the snap election event “further undermines confidence in our elections.” AP
“The bottom line is that the impact of this fringe theory would be terrible,” said former Attorney General Eric Holder, chairman of the National Democratic Redistricting Committee. “It could trigger a wave of gerrymandering on both sides.”
Even less dramatic changes may not necessarily lead the GOP on a national redistribution map that has essentially been fought to a tie and where state court rulings have cost Democrats about as many House seats as Republicans.
The Supreme Court declined to intervene in the North Carolina case in March, allowing the districts drawn by the court to be used that year.
Justices Samuel Alito, Neil Gorsuch and Clarence Thomas disagreed. In writing for the three, Alito said: “There must be some limitation on state courts’ powers to reverse measures by state legislatures when they are prescribing rules for the conduct of federal elections. I think it likely that the applicants would be able to show that the North Carolina Supreme Court exceeded those limits.”
Judge Brett Kavanaugh has written separately about the need for federal courts to oversee the actions of state courts in federal elections.
Chief Justice John Roberts’ record on the issue gives both sides some hope. In 2015, he authored a strong dissent against the court’s decision upholding an independent commission to redistribute Arizona’s counties.
Roberts wrote that the Constitution does not allow a state to completely exclude “the legislature” from redistribution of districts. ”
But in 2019, Roberts wrote the court’s majority opinion that federal courts were closed to claims of partisan gerrymandering, but noted that state courts remained open. “Provisions in state statutes and state constitutions can provide standards and guidance for application by state courts,” he wrote in a statement joined by Alito, Gorsuch, Kavanaugh, and Thomas.
The court’s other conservative judge, Amy Coney Barrett, has no track record in this area.
North Carolina is expected to see a new round of redistricting next year and map out more Republican districts regardless of the outcome of the Supreme Court case.
In last month’s election, voters overturned the majority on the state Supreme Court and elected two new Republican justices, giving the GOP a 5-2 advantage and making it likely, though not certain, that the court would issue a card would be maintained with more Republican districts.