WASHINGTON — Former Attorney General Eric Holder said Sunday he was “extremely concerned” about the outcome of a case due to be heard in the Supreme Court this week that involves a legal theory that gives state legislatures the absolute power to Establish federal electoral rules without oversight from state courts.
“If the Supreme Court does that, it would really turn our system of checks and balances on its head. And that’s why I’m very concerned,” Holder said in an interview with Face the Nation. “It’s a fringe theory. If I think the court is doing the right thing, you should have a nine-to-zero opinion of the court rejecting this notion of this doctrine of independent state legislation, which has been rejected by conservative scholars. by practicing Republican attorneys, by former Republican judges, and also by this Conference of State Supreme Court Justices. This is a very, very dangerous theory. It would jeopardize our system of checks and balances.”
Judges will hear arguments in the North Carolina Republican court case Wednesday, centered on the “theory of independent state legislature.” The theory, put forward by Chief Justice William Rehnquist in his consensus view in Bush v. Gore and raised by former President Donald Trump and Republicans during the 2020 presidential election, suggests that the Constitution gives state legislatures the sole authority to to regulate the federal elections in their states. without oversight by state courts applying state constitutions.
Ahead of hearings, voting rights experts are sounding the alarm about the dire consequences of a decision adopting this theory and the power it would bestow on state legislatures, especially after the 2020 presidential election.
“Having accepted the case, I would hope that the court would enforce this notion of this doctrine of the independent state legislature and get it off the books and out of our consideration once and for all,” Holder said. “It’s really — I can’t stress this enough — it’s really a fringe theory that should result in a nine-to-zero denial of the theory.”
The dispute in the Supreme Court stems from the redistribution process conducted by the GOP-controlled North Carolina General Assembly after the 2020 census. New lines of Congress passed by the state legislature gave Republicans an advantage for 10 of the 14 seats in the state House of Representatives, but the state Supreme Court rejected the card, finding it to be unconstitutional partisan Gerrymander acted in accordance with the state constitution.
The General Assembly enacted new voting lines, which were again rejected by a North Carolina court. The court then approved a map created by a group of special masters and assistants that gave Republicans six seats in their favor over Democrats’ four for the 2022 election cycle, with the four remaining districts more competitive, according to an analysis by Campaign Legal Center.
North Carolina Republicans first asked the US Supreme Court to intervene in late February, filing an emergency motion for the court to block the use of court-produced maps for this year’s congressional elections. The Supreme Court denied the motion, though three of the conservative justices — Samuel Alito, Clarence Thomas and Neil Gorsuch — said the court should have restored the county lines created by the state legislature, and in an opinion written by Alito, “ruled the case.” An extremely important and recurrent issue of constitutional law, namely, the extent of a state court’s authority to overrule rules adopted by a state legislature for use in the conduct of federal elections.”
Republicans then asked the Supreme Court in March to decide whether state courts have the power to change rules governing “the timing, place, and manner” of congressional elections, which they say is a power reserved only for each state’s legislature under the electoral clause of the constitution.
A Supreme Court decision is expected by the end of June.