The Supreme Court is set to hear the case on the electoral power of the state legislatures

WASHINGTON — The Supreme Court announced Thursday that it will hear a case that could radically change how federal elections are conducted by giving state legislatures free power to set election rules that conflict with state laws, without being subject to review by state courts.

The case has the potential to affect many aspects of the 2024 election, including giving judges the power to influence the presidential election if disputes arise over how state courts interpret state election laws.

In taking up the case, the court could upend every aspect of the US election process, allowing state legislatures to set new rules, regulations and districts in federal elections. Eligibility for Presidential Election

“The Supreme Court’s decision will have significant implications for presidential elections, congressional elections and congressional districts,” said former federal appeals court judge J. Michael Luttig said. “So, for American democracy.”

Protections against partisan gerrymandering established by state courts would essentially disappear. The ability to challenge new voting laws at the state level may be reduced. The doctrine underlying this case opens the door for state legislatures to send their own electors.

Admitting a case to be heard and adjudicating it are different. But four justices have already expressed at least tentative support for the theory, finding it more than plausible. The court will likely hear arguments in the fall and issue its decision next year.

Currently, Republicans have complete control of 30 state legislatures To the National Conference of State Legislatures, and was the force behind a wave of new voting restrictions passed last year. And Republican legislatures in key battleground states like Wisconsin, Pennsylvania and North Carolina have used their control over redistricting to effectively lock up power for a decade.

Democrats control only 17 state legislatures.

The case concerned a voting map drawn by the North Carolina legislature that was struck down by the state Supreme Court as a discriminatory gerrymander. Republicans seeking to restore the legislative map argued that the state court was powerless to act under the doctrine of independent state legislatures.

This theory is based on a reading of two similar provisions of the US Constitution. At issue in the North Carolina case, The Election DivisionSays: “The times, places, and manner of holding elections for senators and representatives, shall be prescribed in each state by its legislature.”

That is, North Carolina Republicans argued, the state legislature had sole responsibility over state agencies for drawing congressional districts and state courts had no role.

North Carolina Supreme Court rejected the argument Claiming that it was not competent to review the acts of state legislatures, it was “repugnant to the sovereignty of the states, the authority of state constitutions, and the independence of state courts, and would have absurd and dangerous consequences.”

In Pre-trial meeting In March, when the challengers failed He called for emergency helpThree members of the US Supreme Court said they They would have given the application.

“This case presents an exceptionally important and persistent question of constitutional law, namely, the extent of a state court’s power to strike down rules adopted by a state legislature for the conduct of federal elections,” said Justice Samuel A. Alito Jr. wrote. Justices Clarence Thomas and Neil M. Gorsuch.

Judge Brett M. Kavanagh He agreed that the question was important. “The issue is almost certain to arise until the court definitively resolves it,” he wrote.

But the court should consider it in an orderly manner, he wrote, out of the context of the looming election. He wrote that the court should grant a petition seeking review of the merits “in an appropriate case — either this case from North Carolina or a similar case from another state.”

The court has now accepted this plea in a North Carolina case. Moore v. HarborNo. 21-1271, and it will hear arguments in its next period beginning in October.

Some precedents of the US Supreme Court undermine the principle of an independent state legislature.

When the Court closed the doors of federal courts to discriminatory gerrymandering claims Rucho v. Common cause In 2019, Chief Justice John G. Roberts Jr., writing for the court’s five most conservative members, said state courts could hear such cases — including against the backdrop of congressional redistricting.

Lawyers protect The North Carolina Supreme Court’s ruling in the new case said it was a poor vehicle for addressing the intent of the independent state legislature doctrine because the Legislature itself authorized state courts to review redistricting legislation.

During the last redistricting cycle, state courts in North Carolina, Ohio and New York rejected newly drawn maps as partisan gerrymanders. In 2018, the state Supreme Court in Pennsylvania overturned Republican-drawn congressional districts.

But if the Supreme Court adopts the doctrine, “it would completely eliminate the possibility of redistricting maps based on the proposition of some kind of partisan gerrymander,” said David Rivkin, a federal constitutional law expert who worked under Reagan. and supported the George HW Bush administration and the doctrine of free state legislatures.

That leaves few remaining avenues through the courts to challenge congressional maps as unconstitutional. Partisan gerrymandering would be essentially legal, and the only way to submit a challenge would be a racial gerrymander.

Adopting the doctrine would eliminate independent redistricting commissions established by voters through ballot initiatives, such as in Michigan and Arizona, and limit their scope to state legislative districts.

But the ruling in favor of the independent state legislative doctrine has ramifications that stretch far beyond Congress’s blueprints. Such a decision could limit state courts’ ability to block new voting laws related to federal elections, legal experts say, and limit their ability to make changes on Election Day, such as extending polling hours at places that are open late for bad reasons. Weather or technical issues.

“I can’t overstate how consequential, how radical and consequential this can be,” said Wendy Weiser, vice president for democracy at the Brennan Justice Center. “Essentially no one but Congress is allowed to rein in certain abuses in state legislatures.”

It has been decided that Republican-led State Houses across the country will investigate the case will seize more power On the administration of elections by independent election officers and secretaries of state. In Georgia, for example, a law passed last year took away significant power from the secretary of state, including the chairman of the state Board of Elections.

Such efforts to take partisan control over election administration have worried some suffrage organizations Former President Donald J. Plans laid out by Trump’s legal team In the waning days of his presidency.

“Dream Scene,” Brennan Center Wrote in June“A legislature may use the doctrine as a pretext if it is dissatisfied with how an election official has interpreted its state’s election laws. They refuse to certify results of the presidential election and choose its own electorate instead.

Legal experts note that there are federal constitutional checks that prevent a legislature from declaring after an election that it will ignore the popular vote and send substitute electors. But the Legislature must enact a law before the election, for example, if a Legislature takes an election and sets the parameters for sending its voter list, it can be upheld under the independent state legislature doctrine.

“If this theory is adopted, red state legislatures will be smart and start putting these things in place before 2024,” said Vikram D., dean of the University of Illinois College of Law. Amar said. . “So the rules are there for them to do what they want.”

Adam Lipdock Reported from Washington, and Nick Corazaniti From New York.

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