Key US Supreme Court justices expressed wariness about a far-reaching constitutional argument that would give state lawmakers more power to set the rules for federal elections.
Hearing almost three hours of arguments Wednesday, the justices weighed contentions that the Constitution precludes state judges and other officials from performing longstanding roles in shaping congressional districts, voter eligibility and mail-in ballot requirements.
Some members of the court’s conservative wing suggested they weren’t convinced by sweeping arguments being pressed by North Carolina Republicans in the redistricting case. Justice
Critics say the so-called independent state legislature theory would have dire implications for democracy, depriving voters of crucial layers of protection, wreaking havoc on election administration and changing a centuries-old constitutional understanding.
Lawyers opposing the theory said the Supreme Court can intervene only if a state court egregiously overstepped its authority.
“We don’t doubt that there is some review by this court in the most extreme circumstances,” said
Backers of the theory say it would ensure that elected representatives, not judges or administrators, are setting out the voting rules.
The debate stems from the Constitution’s elections
The central question is whether that phrase refers only to a state’s elected legislative body or instead to its broader lawmaking system, a category that includes officials authorized to make election-related decisions, citizens voting on ballot initiatives and courts exercising their traditional power to review laws.
Conservative justices expressed skepticism during Wednesday’s session about a North Carolina Supreme Court decision that said a congressional map drawn by the Republican-controlled General Assembly was so partisan it violated several provisions of the state constitution. Justice
“Basically they’re saying in no uncertain terms, ‘Look, there’s legislative malfunction here. The legislature’s adopted a political gerrymandering, and it’s really hard to amend the state constitution and we don’t have a referendum to correct it. So there’s a big problem in the state and we have to step in,’” Alito said.
“I think what might strike a person is that this is a proposal that gets rid of the normal checks and balances on the way big governmental decisions are made in this country,” Kagan said. “And you might think that it gets rid of all those checks and balances at exactly the time when they are needed most because legislators we all know have their own self-interest. They want to get re-elected.”
David Thompson, the lawyer representing North Carolina Republicans, responded that “checks and balances do apply, but they come from the federal Constitution and the panoply of federal laws like the Voting Rights Act and other statutes that are highly protective of voters.”
“Vesting the power to veto the actions of the legislature significantly undermines the argument that it can do whatever it wants,” Roberts said.
Thompson said a governor’s veto was a “procedural limitation” on the legislature’s power, contrasting it with what he said was the North Carolina Supreme Court’s “substantive limitation.”
Several justices, including Barrett, indicated they didn’t buy that distinction.
“Is your formalistic test just a way of trying to deal with our precedents or are you rooting that in the Constitution itself?” she asked Thompson. “Because you do have a problem with explaining why these procedural limitations are OK but substantively limitations are not.”
North Carolina’s lawyer,
That law “establishes conclusively that North Carolina courts do not in any way usurp the legislative function when they draw remedial maps in the manner that the statute prescribes,” Verrilli argued.
US Solicitor General
The theory “rejects all of this history and would wreak havoc in the administration of elections across the nation,” Prelogar argued.
The case is Moore v. Harper, 21-1271.
(Adds comments from Kavanaugh, Gorsuch, Kagan starting in fourth paragraph.)
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