GOP pushes for ‘earthquake in US electoral power’

Even if five justices sign off on a version of the independent legislature’s theory, said Rick Hassen, an election law expert at the University of California, Irvine School of Law who does not support the theory, it is unclear how far reaching the ruling will be. . “There’s a lot of potential for nuances here,” he said. “Even if you have the majority of judges who agree that there is something to this theory, they may not agree that a particular state has violated it.”

But if they take the “more hawkish stance, it will be an earthquake in American electoral strength,” Hassan said before Monday’s decision.

And since the court refused to overturn the redistricting maps for other reasons, the theory still awaits a full test of how well it can move forward before the 2024 election.

This theory has its roots in the most famous election-related Supreme Court case of this millennium: Bush v. Gore, along with a related ruling. William Rehnquist, then Chief Justice of the Supreme Court, argued, in a consensual opinion, that under Article II of the Constitution, state legislatures have near-unchallengable power to decide how to appoint the electors of the president, and wrote that federal courts may need to intervene to ensure that “the procedures of a court The mandate after the election does not thwart legislative desire.”

The constitution explicitly mentions only legislatures in relation to presidential electors. The Electors Clause states that “each State shall appoint, in such manner as the Legislature may direct, a number of electors,” and the Elections Clause—which covers elections to Congress—provides that “the times, places, and manner of election to Senators and Representatives shall be appointed in each state by its legislature, ‘subject to the disciplines of Congress.

Now, Republican lawyers — and conservative Supreme Court justices — are espousing the theory that state courts have little power to review election law because of the wording of those clauses.

Some provisions of the Constitution are reasonably debatable. Others aren’t,” read a court briefing from the Republican National Committee, the Republican National Committee and the North Carolina Republican Party in a case in which state Republican lawmakers unsuccessfully sought an emergency order to retain the drawn maps from the court.

The report continued: “There is no role for the state judiciary in the system of authority stipulated in the Constitution.” “Despite this omission, some state and commonwealth courts have taken it upon themselves to allocate operations that belong to politically responsible branches of government.”

The bigger question is whether a conservative-dominated Supreme Court majority will eventually adopt this reading of the election and voter clauses — and if they do, how strict their interpretation will be.

Four conservative justices — Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh — indicated at least some proponents of the independent legislature’s theory on Monday. In a dissenting opinion of the decision to remain on the North Carolina maps, Alito reinforced the independent legislature’s theory when writing about the election clause.

“This clause would have provided that these rules should be determined by ‘each state,’ which would have left it to each state to decide which branch, component or official of state government should exercise that power, as for states generally,” he wrote : “They are free to distribute the power of the state as they choose.” But that is not what the Election Clause says. Its language defines a particular organ of state government, and we must take this language seriously.”

Thomas and Gorsuch joined in opposition to Alito. (Thomas also joined the concurring opinion of Rehnquist in Bush v. Gore in 2000.)

“If the language of the election clause is taken seriously,” Alito wrote, “there should be some limit to the power of state courts to invalidate actions by state legislatures when they determine the rules for conducting federal elections.”

Kavanaugh has not strongly supported this theory. But in consonance with the decision not to exclude Maps, he wrote that “the fundamental question regarding the election clause raised in the emergency application is significant” and that the court should hold a full hearing “in an appropriate state” to consider arguments regarding a less stressful timetable.

These four justices have expressed at least some level of support for the theory during the litigation surrounding the 2020 elections as well.

Monday’s orders to cancel emergency appeals in North Carolina and Pennsylvania did not announce a final vote on the resolutions. But it’s worth noting that neither Chief Justice John Roberts nor Justice Amy Connie Barrett joined in with Kavanaugh’s approval or Alito’s dissent. If one joins the other four conservative justices in a limited reading of the theory, it could have profound implications for the US election.

“The main votes everyone is watching are Roberts, Barrett and Kavanaugh. Whoever gets two out of the three will most likely win,” said Cameron Kistler, a lawyer with the Protect Democracy group.

Kistler argued that new scholarship on the meaning of “legislature” clarified a broader definition of clauses, noting that recent writings on the theory have been tailored to address the current Supreme Court’s makeup. “How conservatives in court are going to reconcile the original new scholarship and their theories of judicial interpretation is going to be really difficult,” he said. “And I think they will struggle with that.”

Republican lawyers raise the case enough to compel the court to confront it sometime in the near future.

GOP lawyers used a strict interpretation of election- and voter-specific provisions in cases challenging a series of pandemic-era voting changes in 2020. Allies of then-President Donald Trump pushed the “independent legislature” theory in their efforts to scrape out election results in swing states and the Voters appointed by Trump-friendly lawmakers.

The case reads from Republican attorneys general who advocated the expulsion of voters from Pennsylvania, Georgia, Michigan, and Wisconsin, in part, that “non-legislative changes to state election law” violate the voters’ clause, so these voters “cannot cast constitutionally valid votes.”

The lawsuit — which was led by Texas Attorney General Ken Paxton and supported by Trump and more than 120 House Republicans — was eventually brought by the Supreme Court due to its lack of standing.

Organizations opposing Republican attorneys in court—from good government groups like Public Cause in the recent North Carolina case to Pennsylvania Democratic Governor Tom Wolf’s administration—argue that this theory is a twisted reading of decades of jurisprudence, including rulings Recently, three years ago.

Victoria Bassetti, a senior adviser to the bipartisan nonprofit US Center for Democracy, also indicated that he might open up to state legislatures to take on a hands-on role in the actual management of elections, which she said would be disastrous.

“There is no evidence that state legislatures have the institutional capacity to truly administer elections in the exact way they need to,” she said before Monday’s decision. The United States acted as pro bono counsel for Wolf and other defendants in the Pennsylvania case.

The supremacy of semi-unchecked legislatures, she said, would “essentially make one branch of government the ultimate authority over how our democracy is to be carried out.” “It really goes against the whole idea of ​​American democracy, which is the balance of power.”

Perhaps the biggest push for independent legislature theory this year has come out of Wisconsin. In an investigation blessed by the state’s top Republicans, former state Supreme Court Justice Michael Gabelman endorsed the fringe theory of “decertification” of the results of the 2020 election, citing the “total power” of state lawmakers over choosing voters — an idea that was sound. Lawyers and constitutional experts in the Wisconsin legislature rejected it.

Since the 1830s, nearly every state has decided to appoint its electors by popular vote in their state. While election lawyers agree that states can, in theory, choose an alternative method of appointment before elections, they almost universally reject the idea that a state legislature can change its mind after an election to appoint an alternative slate of electors without changing state law. — as Trump and his allies have argued in the wake of his loss.

But an extreme reading of the independent legislature’s theory could make those calls even louder — especially in a situation where a losing candidate like Trump is trying to pressure his supporters to do so.

“When the next presidential election comes around, it will further drumbeat some state legislators and appoint voters themselves,” Bassetti said. “But I’ll be quick to say, that wouldn’t give them carte blanche.”

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