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Supreme Court debates Republican bid to transform US elections

A general view of the U.S. Supreme Court building in Washington, Oct. 2. The court held tense arguments on Wednesday in an appeal that could transform American elections by giving politicians more power over voting rules.

A general view of the U.S. Supreme Court building in Washington, Oct. 2. The court held tense arguments on Wednesday in an appeal that could transform American elections by giving politicians more power over voting rules. (Jonathan Ernst, Reuters)


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WASHINGTON — The U.S. Supreme Court held tense arguments on Wednesday in a Republican appeal that could transform American elections by giving politicians more power over voting rules and curbing the ability of state courts to scrutinize their actions in a major case involving North Carolina congressional districts.

Republican state lawmakers are appealing a decision by North Carolina's top court to throw out a map delineating the state's 14 U.S. House of Representatives districts — approved last year by the Republican-controlled state legislature — as unlawfully biased against Democratic voters.

The Republicans are asking the Supreme Court, which has a 6-3 conservative majority, to embrace a once-marginal legal theory that has gained favor among some conservatives called the "independent state legislature" doctrine. Under that doctrine, they claim that the U.S. Constitution gives state legislatures — and not other entities such as state courts — authority over election rules and electoral district maps.

Critics have said that the theory, if accepted, could upend American democratic norms by restricting a crucial check on partisan political power and breed voter confusion with rules that vary between state and federal contests. North Carolina's Department of Justice is now defending the actions of the state's high court alongside the voters and voting rights groups that challenged the Republican-drawn map. They are backed by Democratic President Joe Biden's administration.

David Thompson, a lawyer for the state lawmakers, told the justices that the Constitution "requires state legislatures specifically to perform the federal function of prescribing regulations for federal elections. States lack the authority to restrict the legislature's substantive discretion when performing this federal function."

The court's liberal justices signaled opposition to the arguments of the state lawmakers while conservative justices asked a series of probing questions.

The Supreme Court's eventual decision, due by the end of June, could apply to 2024 elections including the U.S. presidential race.

The doctrine is based in part on language in the Constitution stating that the "times, places and manner" of federal elections "shall be prescribed in each state by the legislature thereof."

"Even under your primary theory, however, isn't it inevitable that there will be questions about the meaning of statutes enacted by the legislature to govern elections?" conservative Justice Samuel Alito asked Thompson.

"So isn't it inevitable that the state courts are going to have to interpret those provisions and isn't it inevitable that state election officials in the executive branch are going to have to make decisions about all sorts of little things that come up concerning the conduct of elections?" Alito asked.

Conservative Chief Justice John Roberts noted that the state lawmakers had conceded in the case that even under their legal theory the U.S. Constitution would still allow a state governor to veto any measures passed by the state's legislature.

"Vesting the power to veto the actions of the legislature significantly undermines the argument that it can do whatever it wants," Roberts said.


Vesting the power to veto the actions of the legislature significantly undermines the argument that it can do whatever it wants.

–Chief Justice John Roberts


The Republican lawmakers have argued that the state court unconstitutionally usurped the North Carolina General Assembly's authority to regulate federal elections. Conservative voter advocacy groups backing them have endorsed the doctrine to curb what they describe as brazen attempts by liberals and Democrats to rewrite election laws through the courts.

'System of constraints'

The doctrine, according to critics, takes aim at a system of checks and balances among the executive, legislative and judicial branches of government.

Liberal Justice Elena Kagan told Thompson, "When we're thinking about this word 'legislature,' we're thinking about it as embedded in a system of constraints. And one of those constraints is the governor, and another of those constraints is the courts."

Kagan noted that in a series of cases over the years the Supreme Court expressed that state courts had a role to play in this area.

Liberal Justice Ketanji Brown Jackson said state legislatures are entities established by state constitutions. Thompson argued that state constitutions cannot impose substantive limits on the actions of legislatures on federal elections.

"I guess what I don't understand is how you can cut the state constitution out of the equation when it is giving the state legislature authority to exercise the legislative power," Jackson told Thompson.


I guess what I don't understand is how you can cut the state constitution out of the equation when it is giving the state legislature authority to exercise the legislative power.

–Justice Ketanji Brown Jackson


The case has come to the Supreme Court at a time of sharp divisions over voting rights in the United States as Republican state legislatures have pursued new voting restrictions in the aftermath of Republican former President Donald Trump's false claims that the 2020 election was stolen from him through widespread voting fraud.

The doctrine could endanger thousands of election-related state constitutional provisions, rules adopted by state elections officials and voter referendum-powered reforms, according to New York University School of Law's Brennan Center for Justice.

Some elections experts have said the doctrine could make it easier for a state legislature's majority party to draw congressional district boundaries to entrench its own power, a practice called gerrymandering. They also have said it could hinder challenges on issues such as voter-identification requirements, mail-in ballots and ballot drop boxes, and could factor into lawsuits that arise in the heat of an election.

North Carolina's legislature passed its version of the congressional map in November 2021. Two groups of plaintiffs, including Democratic voters and an environmental group, then sued, arguing that the map violated state constitutional provisions concerning free elections and freedom of assembly, among others.

The North Carolina Supreme Court struck down the map in February. A lower state court subsequently rejected the legislature's redrawn map and adopted a new map drawn by a bipartisan group of experts. The Supreme Court in March declined a Republican request to put those lower court actions on hold.

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Andrew Chung and Nate Raymond

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