The Economist explains

How the independent-state-legislature theory could transform American elections

The Supreme Court hears a case that could give state legislatures nearly unchecked authority to set election laws

WASHINGTON, DC - MARCH 26: A Fair Maps Rally was held in front of the U.S. Supreme Court on Tuesday, March 26, 2019 in Washington, DC. The rally coincides with the U.S. Supreme Court hearings in landmark redistricting cases out of North Carolina and Maryland. The activists sent the message the the Court should declare gerrymandering unconstitutional now. (Photo by Sarah L. Voisin/The Washington Post via Getty Images)

WHEN AMERICANS elected a new House of Representatives in November, around 90% of the 435 races were foregone conclusions. Owing in large part to aggressive gerrymandering by state legislatures—a process by which politicians draw electoral lines to favour their own party—less than 40 districts saw competitive races. This supercharged gerrymandering came under review by the Supreme Court in 2019, but a 5-4 majority decided that policing electoral maps was not the job of federal courts. In that decision, Rucho v Common Cause, the court did not “condone” gerrymandering or close off other avenues to curtail it. The majority noted that state courts could crack down on state legislatures that draw overly distorted maps. But on December 7th this year the Supreme Court will reconsider that advice. In Moore v Harper the justices will entertain a novel theory that would cut out of the process of setting rules for federal elections every state entity other than legislatures. What is the basis of this independent-state-legislature theory?

Moore and the theory it relies upon are a reaction to state courts overruling distorted maps. A year ago in North Carolina, which is closely split between Republican and Democratic voters, the state’s Republican-held legislature drew an electoral map giving Republicans a virtual lock on ten of the state’s 14 seats in the federal House of Representatives. The state’s supreme court found this inconsistent with several clauses in North Carolina’s constitution, including the guarantee of “free elections”. It enlisted experts to draw fairer lines. Last month’s midterm elections, held using the revised map, produced an even split—Republicans and Democrats won seven seats apiece. Republicans had tried and failed to preserve their map last February by asking the United States Supreme Court to step in. North Carolina’s high court, they said, was not authorised to question a map that the legislature had duly adopted.

When on March 7th the Supreme Court declined to reinstate the Republican-drawn map in North Carolina (and denied a similar request from Republicans in Pennsylvania), Justices Samuel Alito, Neil Gorsuch and Clarence Thomas dissented, throwing their support behind the independent-state-legislature theory. ​​The dissenters claimed that the constitution “specifies a particular organ of a state government”, the legislature, to determine the contours of elections, “and we must take that language seriously”. A fourth justice, Brett Kavanaugh, agreed in spirit and said that the court should take up the question soon in an appropriate case. But Justice Kavanaugh did not join his conservative colleagues—and voted against the Republicans’ request—out of respect for the so-called Purcell principle concerning last-minute changes to election rules. It was “too late”, he wrote, “for the federal courts to order that the district lines be changed for the 2022 primary and general elections”. In May the Supreme Court agreed to consider the matter on its regular docket to determine whether state legislatures will have virtually unchecked authority to set the terms of federal elections for 2024 and beyond. That is the matter the justices will tackle on December 7th.

Article I of America’s constitution provides that the “times, places and manner of holding elections” for Congress “shall be prescribed in each state by the legislature thereof”. Advocates of the independent-state-legislature theory say this clause assigns sole responsibility for redistricting to the state legislature; other branches of the state government, including the courts, must watch from the sidelines. In 2000 a concurring opinion by three justices in Bush v Gore (which ended a recount in Florida and effectively made George W Bush president) drew on this notion, relying on language in Article II which says that presidential electors are to be appointed “in such manner as the legislature” of each state “may direct”. Justices Alito, Gorsuch, Kavanaugh and Thomas cited that concurrence in 2020 when they suggested that state legislatures are in charge of setting the rules for presidential elections. They frowned on state courts interpreting state constitutions to make voting easier during the covid-19 pandemic, by, for example, extending absentee-ballot deadlines.

With four apparent supporters on the Supreme Court, the independent-state-legislature theory may be one vote away from upending more than 200 years of election law in America. Chief Justice John Roberts is unlikely to supply a fifth vote: he wrote the opinion in Rucho inviting state courts to do what the doctrine insists they cannot. But Justice Amy Coney Barrett has remained mum on the question. If she were to join her four colleagues, the implications could be momentous. Liberating legislatures to gerrymander with impunity is a serious-enough concern. But havoc would ensue if state legislatures were suddenly responsible for every rule regarding elections. Independent redistricting commissions in at least eight states could become unconstitutional overnight. Hundreds of state supreme court decisions and regulations regarding voting could fall.

Even presidential elections could ultimately be affected. Although all states currently allocate their electoral votes by consulting their state’s popular vote, nothing in the constitution explicitly requires this. Were legislatures to become supreme and unfettered, they could thwart electoral democracy by choosing slates of electors themselves without oversight from governors or state courts. Such a disenfranchisement of voters may seem like a remote possibility. But it could happen if a Supreme Court majority gets behind an idea that makes state legislatures all-powerful in the realm of election law.

More from The Economist explains:
How is the “Purcell principle” threatening voting rights?
How does America apportion congressional seats?
Who is Ketanji Brown Jackson, Joe Biden’s Supreme Court nominee?

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