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Both cases were brought by Republicans challenging adverse decisions in lower courts. In North Carolina, Republicans want to restore a new district map drawn by the GOP-led legislature but rejected by the state Supreme Court as violating the state constitution.
“This case has the potential to fundamentally overhaul the relationship between state legislatures and state courts in protecting voting rights in federal elections,” liberal electoral law expert Richard Hasen wrote on his blog, Wahlrecht. “It could also pave the way for electoral subversion.”
The Supreme Court in March upheld the North Carolina Supreme Court ruling for the upcoming fall election. But three of the court’s then-conservative judges said they were skeptical about state courts playing a role in assessing federal election rules, and a fourth said the issue was ripe for consideration.
State courts have played an influential role in battles over congressional reallocation after the 2020 census. Judges, for example, have reined in Republican gerrymanders in North Carolina and Pennsylvania and rejected maps drawn by Democratic-led lawmakers in New York and Maryland.
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But efforts to have the Supreme Court examine what has been called the doctrine of independent state legislatures have been led by Republicans. The GOP controls both houses of the legislature in 30 states.
The doctrine stems from the US Constitution’s Election Clause, which states that “the times, places, and manner of holding elections for senators and representatives in each state shall be prescribed by the respective legislature.” While the doctrine of the independent state legislature is most commonly invoked in the redistribution process, it would also give the legislature control over issues such as voter qualifications, postal voting, and other electoral processes.
In the past, this has been widely interpreted as giving states that power, but in a shared way between residents and the executive, legislative, and judicial branches.
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In the election battles leading up to the 2020 presidential election, Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch, and Brett M. Kavanaugh supported the view that state courts could not usurp the legislature’s role in prescribing rules for federal elections.
In March, Alito said he would block the North Carolina court from accepting the new congressional card, believing the legislature had the better argument.
“If the language of the choice clause is to be taken seriously, there must be one some Limiting the power of state courts to reverse action by state legislatures when prescribing rules for conducting federal elections,” wrote Alito, who was echoed by Thomas and Gorsuch. “I think it likely that the applicants would be able to show that the North Carolina Supreme Court exceeded those limits.”
Kavanaugh did not agree to block the state’s court case because it was too close to the election. But he said the issue should be considered in the next term.
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In a 2019 decision, all members of the court – including Thomas, Alito, Gorsuch and Kavanaugh – appeared to envision a role for state courts. In rejecting a role for federal courts in resolving partisan manipulation trials, Chief Justice John G. Roberts Jr. clarified that challenges could be brought through state courts.
“Provisions in state statutes and state constitutions can provide standards and guidance for the use of state courts in the supervision of partisan maneuvers,” Roberts wrote for the majority in Rucho against common cause.
In 2015, the court ruled that the constitution’s electoral clause did not prevent Arizona voters from granting an independent commission, rather than the legislature, the power to charter congressional districts.
“Nothing in this clause indicates, nor has this Court ever ruled, that a state legislature may prescribe rules regarding the time, place and manner of holding federal elections in violation of the provisions of the state Constitution,” Justice Ruth Bader Ginsburg wrote the five member majority in Arizona State Legislature v. Arizona New District Independent Commission.
Liberal Ginsburg died in 2020 and was replaced by Conservative Justice Amy Coney Barrett, who will likely be crucial to 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 margin of 50 percent to 49 percent over Joe Biden.
Analysts said the map produced by Republican lawmakers after the 2020 census gave the GOP an advantage in 10 of 14 congressional districts. Democratic justices on the elected state Supreme Court said the redistribution maps have a partisan bias that “is not explained by North Carolina’s political geography.”
The court concluded that the cards “are unconstitutional, beyond a reasonable doubt, under the free elections clause, the equal protections clause, the freedom of expression clause, and the freedom of association clause of the North Carolina Constitution.”
The state’s Republican legislative leaders told the Supreme Court in their petition that state courts have no authority to question the legislature.
“By its sheer text, the Election Clause creates the authority to regulate the times, places, and manner of federal elections, and then confers that authority on each state’s ‘legislature,'” they wrote. “It does not leave states free to limit the constitutional authority of the legislature or to place it as a matter of state law elsewhere in the state’s governmental apparatus.”
However, the state Justice Department said North Carolina is setting a bad example for the Supreme Court to investigate the matter. Because the legislature itself has given the state courts a role in the redistribution, it is said.
“Two decades ago, the North Carolina General Assembly passed legislation expressly codifying the power of state courts to review legislative efforts to redistribute districts,” the state’s brief said. “At the same time, the legislature has expressly authorized state courts to ‘impose a preliminary district plan’ in situations such as the one giving rise to this complaint. The North Carolina state courts, therefore, have not taken it upon themselves to set federal electoral rules — the state legislature itself has drafted a statutory redistribution system that expressly contemplates court involvement.”
The case is Moore vs. Harper.
Ann E. Marimov contributed to this report.
https://www.washingtonpost.com/politics/2022/06/30/supreme-court-federal-elections-state-legislatures/?utm_source=rss&utm_medium=referral&utm_campaign=wp_politics Supreme Court to review the powers of the state legislature in federal elections