Posted June 27, 2023 | by KimS | in DemDaily, Elections, Supreme Court, Voting Rights

DemDaily: Supreme Court Strikes Down GOP Election Doctrine

June 27, 2023

The 2022-2023 term of the Supreme Court of the United States (SCOTUS) is winding down, with decisions on the final ten cases of the high court rolling out over the next week.

This morning the justices released their 6-3 opinion in Moore v. Harper, rejecting a case that could have radically expanded the power of state legislatures.

The decision was hailed by voting rights advocates as a historic victory for democracy, with long term implications for election law, redistricting and, potentially, presidential elections.

At Issue: The case centered on a fight over partisan gerrymandering in North Carolina which would have given a fringe legal doctrine known as the independent state legislature theory (ISL) new legitimacy.

The theory argues that the Elections Clause under Article I of the US Constitution, which states that election rules “shall be prescribed in each state by the legislature thereof,” gives state legislatures sole power over federal elections -- overriding both state constitutions and state courts.

This would allow the state legislature to fully control redistricting and, in an extreme scenario, could be used as justification for a legislature to refuse to certify the results of a presidential election and instead appoint its own slate of electors.

The ISL doctrine was frequently cited by supporters of former President Donald Trump in cases related to the 2020 presidential election and its aftermath.

Background: The case began as a challenge to the congressional map adopted by North Carollina's Republican-controlled legislature in early November 2021. Democratic voters and non-profits argued that the new map was a partisan gerrymander -- drawn to favor Republicans in 10 out of 14 congressional districts despite the state being roughly divided between Democrats, Republicans, and unaffiliated voters.

The state supreme court agreed, ruling that the new map violated a provision in the state constitution guaranteeing free elections. After the General Assembly's map revisions were rejected, a special master team of outside experts produced a new map which split the state’s congressional seats 7-7 and was approved in February 2022 for the 2022 elections.

Republican lawmakers immediately appealed to the US Supreme Court, arguing that when the state supreme court set aside the General Assembly's original congressional map, it violated the “independent state legislature” theory. In March 2022, SCOTUS rejected the group’s request to fast-track its challenge, but in June 2022, it granted a writ of certiorari, agreeing to hear the case in its 2022–23 term.

The three liberal justices on the court were joined by Chief Justice John Roberts and fellow conservatives Brett Kavanaugh and Amy Coney Barrett in their 6-3 decision, which ruled that the North Carolina Supreme Court was acting within its authority in concluding that the map constituted a partisan gerrymander under the state constitution.

Writing for the majority, Roberts wrote of the independent state legislature theory that while the Elections Clause gives state legislatures power over governing federal elections, it does not vest them with "exclusive and independent authority...to set the rules regarding federal elections …[and] does not insulate state legislatures from the ordinary exercise of state judicial review.”

While “state courts do not have free rein” to strike down state laws governing elections, said Roberts, there is a long precedent in US history of state courts invalidating laws that violate state constitutions.

The decision means state courts will be able to continue performing the crucial duty of reviewing challenges to congressional redistricting schemes that allegedly violate state constitutions or state law.

According to Democracy Docket there are currently seven cases in state courts challenging congressional maps and 21 cases in state courts challenging voting laws or procedures under state constitutions or state law.

Still to Come
Key decisions by the Supreme Court are still expected on student debt relief, affirmative action, free speech, religious accommodations, corporate lawsuit jurisdiction and trademark infringement.

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