The top judge in each of the 50 states is a member of the Conference of Chief Justices. Rarely does the group send a “friend of the court” brief to the U.S. Supreme Court when a case is being heard there? When it does, you should pay attention to the step. In this case, the conference says that “important state court interests are at stake.”
Moore v. Harper is the case, and the high court will hear oral arguments on Wednesday. It has to do with how North Carolina lawmakers made the lines for the congressional districts. The political gerrymander gives Republicans a big advantage, so much so that the state Supreme Court threw out the map.
Republicans in North Carolina want the U.S. Supreme Court to change its mind. For their cause, they have used the “independent state legislature theory,” which has been thought of as a fringe idea for a long time. This idea says that the Elections Clause of the U.S. Constitution gives the state legislatures the only power to decide how federal elections should be run.
So, North Carolina Republicans say that the state Supreme Court has no right to look at their congressional map, let alone reject it. No wonder this seems like a familiar situation. A version of the theory has been used by Ohio Republicans. They have ignored orders from the Ohio Supreme Court to make congressional districts that match a change to the state’s Constitution that voters approved.
Until recently, the answer would have been “no.” Yet, Samuel Alito, Clarence Thomas, and Neil Gorsuch, three justices, have already said they are open to the idea of going along. The state chief justices say that this kind of stance is dangerous because it threatens the fairness of elections and, by extension, our republic, and democracy.
In their brief, they say that the Elections Clause “does not stop state courts from reviewing state laws that affect federal elections under state constitutional provisions.”
For example, the majority of conservatives on the Supreme Court like the term “textualist.” What exactly does the Elections Clause say about state courts reviewing federal decisions? As the state chief justices say, nothing. The text does say that Congress has the power to override state actions, but any such action will be reviewed by the courts. The state chief justices explain why it doesn’t follow that the courts can’t look at what the state legislatures do.
Most conservatives like history and old ways of doing things. What do these signs show? The state chief justices say that the Framers’ idea of “legislature” has always meant the whole process of making laws in a state, including the review of laws by the courts.
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More than that, the brief shows that the Framers didn’t trust state legislatures, which was in line with the spirit of the Constitutional Convention as a whole. The brief says that the debate “centered on making sure that state legislatures were checked and limited,” because “they are easily swayed by self-interest or political factions.”
Since the Civil War, state courts have been looking at state election laws. This is also important. They have sometimes had to draw district lines to end long-running fights. Is the country wrong about this? If Congress wanted to let state legislatures off the hook, the state chief justices say, it would have said so at some point.
The brief mentions what the Supreme Court has said to show that the Elections Clause doesn’t give legislatures too much power. This may be the most telling thing about it. The court has decided that a governor can veto laws about elections. In 2015, Arizona voters passed a ballot measure that gave the job of drawing new districts to an independent commission.
Lastly, the court decided three years ago that if it didn’t have a role in stopping too much partisanship in redistricting, its job was to make sure that state constitutions were followed and that “complaints like these would not go unheard.”
So, how has this case gotten this far? This conservative majority has shown that it is willing to throw out well-established rules. The state chief justices are right to warn that if the majority sides with North Carolina lawmakers, a wave of lawsuits will hit the federal courts.
Worse, the majority would put the republic at risk by giving state lawmakers unchecked power over how elections are run, which is a key part of democracy. Ohio is a clear place where trouble could happen. Now that Republicans run the Statehouse, they want to make it harder for people to vote and pass citizen-led statewide initiatives.
None of these ideas solve a problem. Frank LaRose, the secretary of state, agreed with this when he said that a good idea should get at least 60% of the vote. He didn’t listen to the 70% of voters who wanted to stop extreme partisan gerrymandering.
His body language says a lot about how bad things could get if the U.S. Supreme Court doesn’t listen to the good ideas of state chief justices.
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