Just eight days before the 2020 presidential election, conservative U.S. Supreme Court Justice Brett Kavanaugh wrote in an opinion involving a Wisconsin voting dispute that “state courts do not have a blank check to rewrite state election laws for federal elections.”
Kavanaugh’s words, along with those of some of his fellow conservative justices criticizing state courts in other election-related disputes, foreshadowed a major case set to be argued on Wednesday that could hand politicians more power over the conduct of elections and limit the ability of state courts to scrutinize these actions.
The Supreme Court, which has a 6-3 conservative majority, is due to hear an appeal of a February decision by North Carolina’s top court to throw out a map delineating the state’s 14 U.S. House of Representatives districts – approved by the Republican-controlled state legislature – as biased against Democratic voters.
The Republican North Carolina lawmakers making the appeal are asking the Supreme Court to embrace a legal theory – once marginal but now gaining traction in conservative legal circles – called the “independent state legislature” doctrine, or ISL. Under this doctrine, they contend that the U.S. Constitution gives state legislatures, and not other entities such as state courts, power over election rules and electoral district maps.
North Carolina’s Department of Justice and several voting rights groups that sued to block the Republican-drawn map are now defending the actions of the state’s high court. They are backed by Democratic President Joe Biden’s administration.
Critics have said any Supreme Court endorsement of the doctrine 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.
“The current version of ‘ISL’ was dreamed up by conservative ideologues who don’t want voters to have more rights and therefore have been eroding voting rights across the board,” said Marc Elias, a prominent election lawyer who has represented the Democratic Party in numerous court cases.
“It’s a mission by conservative academics and others to undermine the ability to protect regular citizens’ rights to vote,” Elias added.
The doctrine is based in part on language in the Constitution that the “times, places and manner” of federal elections “shall be prescribed in each state by the legislature thereof.”
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 said state legislatures must defend against what they see as increasingly brazen attempts to rewrite election laws through the courts.
The case has come to the Supreme Court at a time of heightened concern over U.S. election integrity in light of new voting restrictions pursued by Republican state legislatures in the aftermath of Republican former President Donald Trump’s false claims that the 2020 election was stolen from him through widespread voting fraud. Republicans have said their aim is to prevent voting fraud.
The doctrine could endanger hundreds, even thousands, of election-related provisions in state constitutions, rules adopted by state elections officials and reforms adopted through voter referendums, according to New York University School of Law’s Brennan Center for Justice.
Some legal experts have said the doctrine could make it easier for a state legislature’s majority party to draw the boundaries of U.S. congressional districts to entrench its own power, a practice called gerrymandering. It could stymie challenges on issues as varied as voter-identification requirements, mail-in ballots and drop boxes, which Republicans have sought to restrict in some states and could factor into lawsuits that arise in the heat of an election, they added.
John Eastman, a conservative lawyer who advised Trump in his bid to overturn the 2020 election results, wrote a brief telling the Supreme Court that the doctrine also gives legislatures “plenary” power to choose presidential electors in the state-by-state Electoral College system that determines the winner of U.S. presidential races.
Veteran Republican election lawyer Benjamin Ginsberg said in a brief to the Supreme Court that the doctrine could “increase the odds that state legislatures replace the popular vote with their own political preferences.” Ginsberg is among some conservatives who have decried the doctrine.
Jason Snead, a conservative elections expert who embraces the doctrine, said the North Carolina case gives the Supreme Court an opportunity to “shut down a lot of the confusion and chaos” occurring around elections.
“Courts have inserted themselves into the process of crafting election law, and doing so by pulling vague provisions from state constitutions,” said Snead, who heads the Honest Elections Project, a group that sometimes opposes bids for more expansive voting rules favored by liberal organizations and Democrats.
Snead, conservative scholars and others reject the view that the doctrine would give politicians unbridled power or cause chaos because the actions of legislatures remain constrained by provisions of the U.S. Constitution and federal law.
The doctrine appears to have receptive audience in some of the Supreme Court’s conservative justices.
When the court in March declined to block lower court rulings adopting an electoral map replacing the Republican-drafted one in North Carolina, Justice Samuel Alito dissented alongside Justices Clarence Thomas and Neil Gorsuch. Alito emphasized that the Constitution specifies that election rules are to be prescribed by legislatures, adding “we must take that language seriously.”
Electoral maps are redrawn to reflect population changes measured in a national census every decade. North Carolina’s legislature adopted its House districts in November 2021.
Two groups of plaintiffs, including Democratic voters and an environmental group, sued claiming the map violated state constitutional provisions concerning free elections and freedom of assembly, among others.
The North Carolina Supreme Court struck down the map on Feb. 4, finding the districts were crafted to dilute the “fundamental right to equal voting power” of Democrats. A lower state court then rejected a redrawn map by Republican lawmakers and adopted one devised by a bipartisan group of experts.
The Supreme Court’s ruling is due by the end of June.