The so-called independent state legislature theory is at the center of a Supreme Court case involving electoral maps in North Carolina. The theory runs afoul of normal checks and balances, the senators wrote.
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Senator Amy Klobuchar said she and 19 other Democrats filed their brief with the court because “the right to vote is under attack.”
A group of 20 Democratic senators filed a brief on Wednesday urging the Supreme Court to reject a legal argument that would give state legislatures extraordinary power over federal elections.
The brief, filed by Senator Amy Klobuchar of Minnesota, draws parallels to the checks and balances of the federal government — especially Congress — as a clear indication that the so-called independent state legislature theory runs afoul of the Constitution.
The senators argue that while the Constitution grants state legislatures the responsibility of setting the time, location and manner of federal elections, the Constitution also requires state legislatures to follow the same procedures when making rules for federal elections that they use to make other state laws. The clause, they write, “does not allow state legislatures to bypass the same restrictions imposed by state constitutions — the very documents that create and empower them.”
Once considered a fringe argument found only in the far reaches of conservative legal thought, the independent state legislature theory is now at the center of a redistricting case in North Carolina before the Supreme Court. Set to be heard in December, that case, Moore v. Harper, involves a congressional map drawn by the Republican-led legislature that was rejected by the state’s Supreme Court as a partisan gerrymander. Republican lawmakers sued, arguing that the court had no authority to reject the map. The North Carolina Republicans have argued that the clause means state legislatures alone are responsible for drawing congressional districts, and the courts have no role to play.
Should the Supreme Court side with the North Carolina Republicans, it could give state legislatures across the country broad authority to write voting laws, draw district maps and set other electoral rules without being subject to review by state courts.
Understand the Supreme Court’s New Term
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A race to the right. After a series of judicial bombshells in June that included eliminating the right to abortion, a Supreme Court dominated by conservatives returns to the bench — and there are few signs that the court’s rightward shift is slowing. Here’s a closer look at the new term:
Legitimacy concerns swirl. The court’s aggressive approach has led its approval ratings to plummet. In a recent Gallup poll, 58 percent of Americans said they disapproved of the job the Supreme Court was doing. Such findings seem to have prompted several justices to discuss whether the court’s legitimacy was in peril in recent public appearances.
Affirmative action. The marquee cases of the new term are challenges to the race-conscious admissions programs at Harvard and the University of North Carolina. While the court has repeatedly upheld affirmative-action programs, a six-justice conservative supermajority may put more than 40 years of precedents at risk.
Voting rights. The role race may play in government decision-making also figures in a case that is a challenge under the Voting Rights Act to an Alabama electoral map that a lower court had said diluted the power of Black voters. The case is a major new test of the Voting Rights Act in a court that has gradually limited the law’s reach in other contexts.
Election laws. The court will hear arguments in a case that could radically reshape how federal elections are conducted by giving state legislatures independent power, not subject to review by state courts, to set election rules in conflict with state constitutions. In a rare plea, state chief justices urged the court to reject that approach.
Discrimination against gay couples. The justices will hear an appeal from a web designer who objects to providing services for same-sex marriages in a case that pits claims of religious freedom against laws banning discrimination based on sexual orientation. The court last considered the issue in 2018 in a similar dispute, but failed to yield a definitive ruling.
Some legal scholars argue that it could also open up the possibility that a legislature could subvert the will of the people in a presidential election.
“The nightmare scenario is that a legislature, displeased with how an election official on the ground has interpreted her state’s election laws, would invoke the theory as a pretext to refuse to certify the results of a presidential election and instead select its own slate of electors,” the Brennan Center for Justice wrote this year.
How Times reporters cover politics. We rely on our journalists to be independent observers. So while Times staff members may vote, they are not allowed to endorse or campaign for candidates or political causes. This includes participating in marches or rallies in support of a movement or giving money to, or raising money for, any political candidate or election cause.
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Ms. Klobuchar said she and other senators filed the brief as part of a fight against continuing threats to democracy.
“Across our country, the right to vote is under attack from state legislative efforts that threaten our democratic processes and limit opportunities for people to make their voices heard at the ballot box,” Ms. Klobuchar said in a statement. “That’s why I’m leading my colleagues in filing this amicus brief to urge the Supreme Court to ensure that state legislatures remain bound by checks and balances in their state constitutions such as judicial review.”
In the brief, the senators argue that Article 1, Section 4 of the Constitution — known as the Elections Clause — does not supersede all other provisions of the Constitution.
“Allowing state legislatures to act independently of these ordinary checks and balances would not only undermine the structure of the Elections Clause and Article I as a whole, it would also run contrary to the Constitution’s guarantee of a ‘republican form of government,’” the senators wrote.
The brief also notes that state legislatures derive their power from state constitutions, and therefore must be beholden to the rules set forth by the state’s founding documents.
“Because the state constitution creates the state legislature, the latter cannot supersede the former,” the brief states. “The legislature cannot circumvent the authority delegated by the state constitution (and the people) to the state courts to review its enactments to ‘vindicate the rights guaranteed by [the state] Constitution.’”
Source: nytimes.com
