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Supreme Court pressed to give state legislatures more power to oversee federal elections

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WASHINGTON – A month after millions of Americans cast their vote in a midterm election that was mostly free from glitches, the Supreme Court will wrestle with a case Wednesday that some advocates – both liberal and conservative – fear could upend how federal elections are run, starting with the 2024 presidential contest.

From the hours that polling locations remain open, to voter ID requirements to the way lawmakers divvy up neighborhoods into congressional districts every decade, the court’s decision could give legislatures in each state far more power to set the rules for federal elections by removing the ability of state courts to review and strike their laws down.

The case, Moore v. Harper, arrives at the nation’s highest court at a time when polls indicate that some Americans are losing faith in elections after hearing false claims of widespread voter fraud from former President Donald Trump and his allies for years


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At the center of the litigation is North Carolina’s congressional map, which the state’s supreme court rejected in February because it gave the GOP an advantage the court said violated the state constitution. Republican lawmakers appealed to the U.S. Supreme Court, asserting that state courts didn’t have the power to strike down or redraw the map. That’s based on a clause in the U.S. Constitution that gives authority to legislatures and to Congress to regulate federal elections but makes no  mention of state courts.

Critics say the implications of that legal theory – known as the independent state legislature doctrine – could be sweeping, allowing state legislatures that are often controlled by one party to manipulate the rules of federal elections in ways that only benefit them.


“To give absolute power to one branch of government, unbound by state constitutions, would lead us down a dangerous road to tyranny,” asserted Kathay Feng, national redistricting director for Common Cause, which is opposing the position of the North Carolina GOP lawmakers in the case.

But others say such fears are overblown: The problem, supporters of the doctrine say, is when state courts step in to invalidate election laws based on vaguely worded clauses in the state constitution or take it upon themselves to write those rules. And other protections would remain, they argue, including the governor’s ability to veto a law.

And, they say, a plain reading of the U.S. Constitution’s election clause suggests that the word “legislature” means what it says.


“This is a case very fundamentally about what the elections clause says and which organ of state government…is in the driver’s seat,” said Jason Snead, executive director of the Honest Elections Project, which advocates for stricter voting laws and which is backing the state GOP lawmakers. “It is as simple as any Schoolhouse Rock video: If you are talking about which institutions write our laws, it is the legislature.”

The Supreme Court on Dec. 5, 2022.

The Supreme Court on Dec. 5, 2022.

But even among conservatives, there is disagreement over the doctrine’s reach, which opponents say reflects the fact that the North Carolina lawmakers’ reading of the Constitution has never been embraced by the Supreme Court. Just seven years ago, a 5-4 majority rejected a similar argument used to challenge Arizona’s independent commission, which draws that state’s districts despite not being a legislature.

The word “legislature,” Associate Justice Ruth Bader Ginsburg wrote for the majority in that case, meant something broader than just the legislative body. It meant a state’s general power to make laws. Interpreting the clause as granting the state legislature sole power to make election laws, she wrote at the time, would be “perverse.”


That opinion brought together the court’s liberal wing – which then had four members – with Associate Justice Anthony Kennedy, a swing vote. That was then. After Trump’s presidency, conservatives now enjoy a 6-3 majority on the high court.

Yet it’s not only left-leaning advocacy groups that are alarmed over the potential consequences of the lawmakers’ position. Benjamin Ginsberg, one of the nation’s best-known Republican election attorneys, told the court in a brief that the lawmaker’s approach was a “disaster waiting to happen” and would sow “chaos.”

Applied in practice, Ginsberg said, the theory could lead to a different set of rules for state and federal elections – even though those often take place at the same time. If a local judge ordered a polling place to remain open past its normal closing time – a relatively common occurrence – would that order apply only to state races, he asked.


“Unfortunately, because of ongoing and widespread efforts to sow distrust and spread disinformation, confidence in our elections is at a low ebb,” Ginsberg told the court. The theory of legislative authority championed by the lawmakers, he said, “threatens to make a bad situation much worse.”

But the Republican National Committee told the Supreme Court that state courts are creating “bedlam” that is “increasingly plaguing” redistricting and election law generally. Those decisions, the RNC argued, should be left to an elected legislature.

“Certain state and commonwealth courts have taken it upon themselves to appropriate the processes that belong to the politically accountable branches of government,” it said. In this case, it added, North Carolina’s courts had “engaged in judicial lawmaking.”


State and federal courts stepped in repeatedly during the 2020 election. At a time when the U.S. Postal Service was experiencing delivery delays, a Pennsylvania court ruled that absentee ballots could still be counted even if they arrived three days after the election. The U.S. Supreme Court declined to halt that ruling. Despite Trump’s protests, the number of ballots at issue was not enough for him to win the Keystone State.

At least four conservative justices have signaled varying levels of interest in the doctrine. Associate Justice Brett Kavanaugh, often viewed as sitting at the ideological center of the court, said the lawsuit presented “important” questions and that “both sides” had “advanced serious arguments.” The question, Kavanaugh wrote in March, “is almost certain to keep arising until the court definitively resolves it.”

That echoes a point Snead and others on his side of the case frequently raise: Better to decide the issue now rather than during a presidential election year.


“I certainly hope that they don’t dodge this because it will continue to come up,” Snead said, adding that it would be preferable to “establish a clear precedent now, before we get into the mire of the politics of a presidential election.”

A decision is expected next year.

This article originally appeared on USA TODAY: Supreme Court to hear election case with major implications for voters

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