Republicans in Pennsylvania were desperate in the winter of 2018.
A few weeks into the new year, the Pennsylvania Supreme Court annulled the state legislative map. The court said the precincts were distorted to the extent that they violated the Pennsylvania Constitution “clearly and unequivocally.” With their considerable dominance in legislative delegations in endangered states, Republicans US Supreme Court intervene.
they faced a big problem. It is very difficult to persuade the U.S. Supreme Court, a federal agency, to override state court decisions based solely on state constitutions.
So Republicans launched Hail Mary, say it The Pennsylvania Supreme Court exceeded its powers because the U.S. Constitution gives state legislatures, not state courts, the power to set congressional districts.the theory is “long shot”, noted electoral law professor Richard Heysen at the time. The Supreme Court declined to hear the case without much fanfare.
But just four years later, the dramatically right-leaning U.S. Supreme Court may be on the verge of a dramatic turnaround, adopting a line of thinking called the Independent State Law Theory (ISLT). oral arguments in the case, moore vs harperset for Wednesday, December 7, and at stake are some of the foundations of American democracy.
At the heart of ISLT is a simple idea. State legislatures are responsible for setting the rules for federal elections. State courts cannot override the rules they set, even if they violate the state constitution. This is an argument that depends on a particular reading of the US Constitution. election clauseit states that state legislatures have the power to set the “time, place and manner” of federal elections.
It would give state legislatures enormous power over issues as diverse as partisan gerrymandering, early and mail-in voting rules, voter ID measures, felon disenfranchisement, and more.
This is “the most important event for American democracy in nearly two and a half centuries since America’s founding,” said J Michael Luttig, a respected former conservative federal judge. written in the Atlantic Earlier this year.
“Such doctrine would be contrary to the drafters’ intent and to the text, basic design and structure of the Constitution,” wrote the recently signed Luttig. Litigants Co-Lawyers Against theory.
Experts warn that adopting this theory would be undemocratic and would dramatically reshape U.S. election law and undermine the separation of powers at the heart of the U.S. government.
“This theory could liberate gerrymanders to adopt even worse gerrymander maps. He said he submitted a brief in support of the ISLT.
RepresentUs reports that a Supreme Court ruling supporting this theory has included more than 200 state constitutions dealing with endangered voting that contain language that explicitly grants the right to vote and the ability to vote in secret ballots. clause may be placed. government watchdog.
“It would really open the door to chaos and upend the way elections are regulated in this country,” Swellenbecker said.
The theory’s modern origins were seeded in Bush v Gore in 2000, in a memorandum written by then Chief Justice William Rehnquist and joined by Justices Clarence Thomas and Antonin Scalia. . I have written In that case, the court could not change the “general consistency of the legislative scheme.”
A decision in this case would most directly benefit Republicans, who control more state legislatures than Democrats.
In fact, many of the groups that support this theory come from Republican-leaning conservative groups. A conservative dark money group donated about $90 million to a group that submitted a friend’s brief in support of the theory. report From the watchdog group Accountable.US.
The Honest Election Project, a group closely associated with Leonard Leo, one of the most influential conservative figures, has also played a central role in advancing theories in court. report Earlier this year.
“In my view, at least a large part of the reason for its resurgence in such an important form is due to the fact that in many very important purple states, Congress is highly gerrymandered. Carolyn Shapiro, a professor at the University of Kent Law School, said: “These Republican-controlled Congresses, which are controlled by the Republicans because of their extreme partisan gerrymandering, are not themselves, when it comes to federal elections.” It’s a way we can take power away from voters.”
A specific case in the Supreme Court now deals with a dispute over a map of the North Carolina legislature.
Last year, Republicans, who control state legislatures, GOP GOP Chance to win in up to 11 of the state’s 14 congressional districts. The state Supreme Court ruled in line with partisan lines by a 4-3 vote, saying the precincts were grossly distorted and violated the North Carolina Constitution.
A few weeks later, the court also dismissed the lawmakers’ proposed amendment as unconstitutional and appointed a special master to create the new map.the plan Created 7 Republican-leaning seats, 6 Democratic-leaning seats, and 1 highly competitive seat.each party rolled Win seven seats in the 2022 midterm elections.
Republicans in North Carolina have appealed to the U.S. Supreme Court, arguing that the state Supreme Court has exceeded its powers.
“The election clause creates the power and gives Congress the power to regulate the time, place, and manner of federal elections,” says state attorneys. I have written“It does not give states the freedom, as a matter of state law, to limit freely the constitutionally granted powers of their legislatures or to place them elsewhere in the state’s governmental body.”
It was a slightly different appeal. Just three years ago, when he dealt with another challenge to a congressional district in North Carolina in 2019, the U.S. Supreme Court ruled that state courts and state constitutions could be used to crack down on partisan gerrymandering. seems to have been clearly stated.Federal courts were unable to conduct oversight, but Supreme Court Chief Justice John Roberts written for the majority“State laws and provisions of the state constitution can provide the standards and guidance that state courts apply.”
And in 2015, the Supreme Court also saw deny the theory. In a case that year, the court ruled 5 to 4 that independent commissions created by voting initiatives could draw congressional districts, striking a blow to the notion that only lawmakers could set federal election rules. gave
But it wasn’t until a request from the Republican Party of North Carolina reached the court this year that some conservative Supreme Court justices showed renewed interest in the theory.
Lawsuits flooded state courts during the 2020 election, ultimately resulting in broader voting policies amid the pandemic. Republicans relied on the ISLT to challenge these decisions. The Supreme Court did not endorse this theory, but in the court’s emergency order on the “shadow docket,” some of the court’s more conservative justices expressed deep interest in it. Judge Brett Kavanaugh said: that is “Important” to be resolved.
Swellenbecker said the interest in the case was unusual. Usually, courts decide to sue because there is significant disagreement among lower courts on issues that need to be resolved. “There was really no legal dispute on this issue because the state of the law was incredibly clear,” she said. I have seen the opinion of judges seeking opportunity because of how clear the law and evidence are regarding this radical theory.”
Despite the judge’s interest, Sweren-Becker and other supporters are not convinced they will necessarily accept the ISLT. Unlike the 2020 ruling, they have a lot to face. historical evidence cut against it.
“The fact that a court has decided to sue does not mean that this concept will be adopted by the court,” Sweren-Becker said. “The incredible evidence supports this theory.” denial, and frankly, there is absolutely no evidence to support this theory.”
https://www.theguardian.com/us-news/2022/dec/06/supreme-court-voting-rights-moore-v-harper-gerrymander-voter-id U.S. Supreme Court Hears Cases With Significant Voting Consequences | U.S. Voting Rights