The Supreme Court building in Washington, on March 22, 2023. In a 6-3 decision handed down on June 27, the Supreme Court rejected a bid to radically reshape how federal elections are conducted by giving state legislatures largely unchecked power to set all sorts of rules for elections and to draw congressional maps warped by partisan gerrymandering.
By ADAM LIPTAK
The Supreme Court earlier this week rejected a legal theory that would have radically reshaped how federal elections are conducted by giving state legislatures largely unchecked power to set rules for federal elections and to draw congressional maps warped by partisan gerrymandering.
The vote was 6-3, with Chief Justice John Roberts writing the majority opinion. The Constitution, he said, “does not exempt state legislatures from the ordinary constraints imposed by state law.”
Justices Clarence Thomas, Samuel Alito and Neil Gorsuch dissented.
The decision followed other important rulings this term in which the court’s three liberal members were in the majority, including ones on the Voting Rights Act, immigration and tribal rights. Although some of the biggest cases are still to come, probably arriving by the end of the week, the court has so far repeatedly repudiated aggressive arguments from conservative litigants.
The case concerned the “independent state legislature” theory. It is based on a reading of the Constitution’s Elections Clause, which says, “The times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof.”
Proponents of the strongest form of the theory say this means that no other organs of state government — not courts, not governors, not election administrators, not independent commissions — can alter a legislature’s actions on federal elections.
Roberts rejected that position. “The Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review,” he wrote.
The ruling soundly dismissed the theory, one that an unusually diverse array of lawyers, judges and scholars across the ideological spectrum viewed as extreme and dangerous. Adopting the theory, they warned, could have profound consequences for nearly every aspect of federal elections, including by erasing safeguards against partisan gerrymandering and curtailing the ability to challenge voting restrictions in state courts.
But some election law specialists cautioned that Tuesday’s decision elevated the power of federal courts in the process, allowing them to second-guess at least some rulings of state courts based on state law.
“This gives the U.S. Supreme Court the ultimate say over the meaning of state law in the midst of an election dispute,” Richard L. Hasen, a law professor at UCLA, wrote in a blog post. “This is a bad, but not awful, result.”
Others said the decision was a nearly complete victory and a resounding reaffirmation of the status quo. “I see no evidence of interest by the Supreme Court to make mischief here,” said Vikram David Amar, the dean of the University of Illinois College of Law.
Justices Sonia Sotomayor, Elena Kagan, Brett Kavanaugh, Amy Coney Barrett and Ketanji Brown Jackson joined the chief justice’s majority opinion.
The case will have no practical impact in the dispute that gave rise to it, involving North Carolina’s congressional voting map. A recent ruling by the state’s Supreme Court authorized the Republican-controlled legislature to draw maps as it sees fit, ensuring that the resulting districts will be shaped by politics.
The case, Moore v. Harper, concerned a voting map drawn by the North Carolina legislature after the 2020 census that was initially rejected as a partisan gerrymander by the state’s Supreme Court. Experts said the map was likely to yield a congressional delegation made up of at least 10 Republicans and four or fewer Democrats, even though North Carolina is a roughly evenly divided state politically.
The state court initially rejected the argument that it was not entitled to review the actions of the state’s legislature, saying that adopting the independent state legislature theory would be “repugnant to the sovereignty of states, the authority of state constitutions and the independence of state courts, and would produce absurd and dangerous consequences.”
Republicans seeking to restore the legislative map last year asked the U.S. Supreme Court to intervene, arguing in an emergency application that the state court had been powerless to act.
The justices rejected the request for immediate intervention, and the election in November was conducted under a map drawn by experts appointed by a state court. That resulted in a 14-member congressional delegation that was evenly split between Republicans and Democrats.
The Republican lawmakers appealed to the U.S. Supreme Court, saying the state court was not entitled to second-guess the legislature. When the U.S. Supreme Court heard arguments in the case in December, the justices seemed divided, if not fractured, over the limits of the theory.
The composition of the North Carolina Supreme Court changed after elections in November, favoring Republicans by a 5-2 margin. In what a dissenting justice called a “shameful manipulation of fundamental principles of our democracy and the rule of law,” the new majority reversed course, saying the legislature was free to draw gerrymandered voting districts as it saw fit.
Many observers had expected the U.S. Supreme Court to dismiss the case in light of that development. But Roberts concluded that the case involved a live controversy and that the court retained jurisdiction over it.
In dissent, Thomas said the case was “indisputably moot.” He added that the majority’s reasoning on the merits was unpersuasive and that he feared the ruling would invite last-minute lawsuits over election disputes.
“They will arise haphazardly, in the midst of quickly evolving, politically charged controversies, and the winners of federal elections may be decided by a federal court’s expedited judgment that a state court exceeded ‘the bounds of ordinary judicial review’ in construing the state constitution,” he wrote. “I would hesitate long before committing the federal judiciary to this uncertain path.”
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