Topline
The Supreme Court may soon give state legislatures total control over their states’ elections—and make it much easier for them to overturn the results—as the court announced Thursday it will take up a case concerning North Carolina’s redistricting maps and whether state courts can overrule voting rules imposed by state legislatures.
A police officer stands guard on the steps of the US Supreme Court in Washington, DC, June 15, 2017.
Key Facts
The court will hear Moore v. Harper, a dispute brought by Republican lawmakers in North Carolina after state courts rejected the redistricting map they drew up for being too skewed toward the GOP and a new map was drawn up by different court-appointed experts.
The lawmakers asked the court to consider the “independent state legislature” theory and whether state courts are allowed to overrule state legislatures on voting-related matters or if that violates the Constitution, which states the “time, place and manner” of holding federal elections “shall be prescribed in each State by the Legislature thereof.”
If justices uphold that theory, it could have big consequences, essentially allowing state lawmakers to impose whatever voting-related rules they want for federal elections and taking away the power of state courts or secretaries of state from imposing voting rules themselves or declaring legislatures’ laws to be unlawful.
The theory was also repeatedly used by former President Donald Trump and his allies in post-election lawsuits as legal justification to overturn the 2020 presidential election results, arguing the election was unfairly decided and so should be left to state legislatures—which were controlled by Republicans—to instead decide themselves.
That legal argument was completely unsuccessful during the 2020 election, with a Trump-appointed judge in Wisconsin ruling it was “contrary both to the plain meaning of the Constitutional text and common sense.”
If the Supreme Court upholds the theory—which several conservative justices have suggested they may be willing to do—it would be much easier for campaigns to successfully use that argument in future elections and give legislatures license to overturn the results.
What We Don’t Know
How the court will rule and what effect it will have on the 2024 election. “Trump and the Republicans can only be stopped from stealing the 2024 election at this point if the Supreme Court rejects the independent state legislature doctrine” and Congress amends the Electoral Count Act so federal lawmakers can’t overturn elections, retired federal judge J. Michael Luttig, a conservative, wrote for CNN, calling the legal theory the “cornerstone” of Trump’s plan to overturn the 2020 results.
Key Background
The North Carolina lawmakers first asked the Supreme Court in February to block the maps that were created by the court-appointed experts, but the court denied its request, with Justice Brett Kavanaugh saying in a concurrence the court believed it was too close to the 2022 elections to change the maps. Kavanaugh and Justices Samuel Alito, Clarence Thomas and Neil Gorsuch said they believed the court should decide the independent state legislature theory, however, with Alito writing the issue “is of great national importance.” “We will have to resolve this question sooner or later, and the sooner we do so, the better,” Alito wrote in a dissent joined by Thomas and Gorsuch. The Supreme Court rejected all of the post-election cases that came before it in 2020 that involved the state legislature doctrine, but conservative justices have supported it in the past, including Thomas in a concurring opinion to Bush v. Gore, the 2000 case that determined that year’s presidential election.
Tangent
The court’s decision over whether to take up a case that could make it easier to overturn elections comes as Thomas and his wife Ginni Thomas have come under widespread criticism for her supporting efforts to overturn the 2020 presidential election. Documents obtained by the House January 6 Committee show text messages between Ginni Thomas and then-White House Chief of Staff Mark Meadows in which she encouraged the Trump campaign’s efforts to challenge the election results, along with communications with Trump attorney John Eastman, who aided Trump’s post-election efforts, and Republicans in Arizona who submitted a false slate of electors to Congress claiming Trump won. Though Ginni Thomas has said she and her husband do not discuss their work with each other, her post-election activities have raised scrutiny on Thomas as a justice and whether he can be impartial in election-related matters, with many Democrats calling for him to recuse himself or resign.
Further Reading
Supreme Court appears ready to hear election case that could increase state lawmakers’ power (Associated Press)
The ‘Independent State Legislature Theory,’ Explained (Brennan Center for Justice)
The independent state legislature theory and more on jurisdiction (SCOTUSblog)
Opinion: The Republican blueprint to steal the 2024 election (CNN)
Trump-Appointed Judge In Wisconsin Shuts Down Campaign’s Legal Argument For Why Election Was Rigged (Forbes)
Source: https://www.forbes.com/sites/alisondurkee/2022/06/30/supreme-court-takes-up-case-that-could-make-it-easier-to-overturn-elections/