🗳️ Should there be checks and balances on state legislatures to ensure free and fair federal elections?

The Supreme Court is pondering this question, as I explained this week on C-SPAN’s Washington Journal.

Source: Mark Wilson/Getty Images

Case: Moore v. Harper

Issue: Did the highest court in North Carolina overstep its constitutional authority by striking down a gerrymandered congressional map adopted by the North Carolina Republican-controlled legislature?

Context: Checks and balances are at stake in this case, especially for legislatures that make rules for elections. In 2022 alone, at least 405 restrictive voting bills have been proposed in 39 state legislatures. Should state politicians have the final word on whether these laws stick — or should state courts be able to weigh in?

Background refresher: Redistricting (or gerrymandering) is the process of drawing the physical boundaries of the districts from which public officials are elected. The lines are redrawn for the U.S. House of Representatives after each Census. “Packing” is the practice of jamming voters from one party into one district, even if it creates a tortured map, enabling one party to lock in power indefinitely. “Cracking” is the practice of breaking up a homogenous district so that like-minded voters cannot have any real power.

In 2019, in Rucho v. Common Cause, the Supreme Court slammed the federal courthouse doors to cases challenging partisan gerrymandering. Which is why this lawsuit was filed in state court under state law. The question before the Supreme Court is whether state courts can assess state laws involving federal elections to ensure compliance with the state constitution and other state laws.

It’s a classic problem of federalism: How much should the federal government—here, the U.S. Supreme Court—tinker with how states do state business? And by “states,” I mean to include state courts and state constitutions, not just politicians.

There is a clause in the U.S. Constitution called the Elections Clause. It says that the “time, place and manner of congressional elections” will be prescribed by state legislatures, unless Congress steps in with federal legislation.

The Republican legislators are arguing that they have the authority, through the Elections Clause, to make rules for federal elections and that state courts cannot inhibit them from doing so even if what they do violates state constitutions. They base their argument on something called the “independent state legislature theory,” which would give state legislatures broad power to regulate federal elections without interference from state courts.

Hypothetically, this means that if a state legislature decides to pass a law declaring that the presidential election results in that state were invalid and instead awards its electoral votes to the opposing candidate who is publicly calling the election a “Big Lie,” they could be able to do so. State courts could not review that maneuver even if those laws violated the state constitution (which created the state legislature in the first place).

In Moore, multiple conservative legal and political figures have urged the court NOT to endorse the independent state legislature theory. Steven Calabresi, a founder of the well-known conservative Federalist Society, warned that it “flout[s] core tenets of the American Founding.”

What precedent says: Justice Elena Kagan walked through several Supreme Court cases to make clear that state courts, applying the constitution for that state, can indeed review the legislature’s power over federal elections. The independent state legislature theory has been rejected repeatedly in past cases from 1916 to 2015.

If we take a cue from Justice Alito and look at the history and tradition context of the word “legislature” in the U.S. Constitution’s election clause, the word does not mean just the people who make up the House and Senate—it means “the power that makes laws,” as held by the Supreme Court in the 2015 case, Arizona State Legislature v. Arizona Independent Redistricting Commission. When the U.S. Constitution was drafted, popularly-elected legislative bodies were new to the scene. The shared power that makes laws thus referred to the people of the state through a referendum vote, a state governor, or even a bipartisan commission.

From the oral argument, Justices Alito, Thomas, and Gorsuch seemed persuaded by the North Carolina legislature’s radical reading of the Elections Clause. Justices Kavanaugh and Barrett and Chief Justice Roberts appeared willing to allow federal judges to review what state judges do with federal election laws, but were skeptical of the full-blown independent state legislature doctrine. Justices Sotomayor, Kagan, and Brown Jackson were obviously inclined to stick with the 233-year tradition of allowing state courts to apply state constitutions to state election laws, even if they affect federal races.

Bottom line: Democracy may have dodged a major bullet with this one.

When do we find out the decision in this case? Early next summer.

Education is key to protecting democracy. Now is a good time to pick up or gift a copy of my first book, How to Read the Constitution--and Why.

Buy Here

Follow the Facts,

KW

Simple Politics with Kim Wehle

Supreme Court debrief: Can state legislators…