For months, my inbox has been bombarded by anxious Democrats and election experts wanting to talk about a once-obscure legal theory that could fundamentally alter the way Americans vote.
Known as the independent state legislature doctrine, it holds, in its purest form, that state constitutions have little to no ability to constrain state legislatures. The doctrine emerged from a novel interpretation of the U.S. Constitution’s Elections Clause, which grants states the authority to set the “time, places and manner” of federal elections.
At the core of the dispute is whether the framers intended the word “legislature” in the document to be understood strictly, or whether they meant that other institutions — like state courts, governors and secretaries of state — also had important roles to play in setting and interpreting the rules around elections and voting.
A fringe version of the doctrine entered the public discussion last year when it emerged that one of Donald Trump’s lawyers, John Eastman, had written a memo arguing that it even allowed state lawmakers to send their own slate of presidential electors to Washington.
The Supreme Court has traditionally been gun-shy about encroaching on state courts, especially when they are interpreting their own constitutions.
But a more mainstream conservative position, embraced by the Republican Party and rejected by Democrats, started gaining support on the right amid legal battles over the accommodations some states made for voters during the pandemic, like the expansion of mail voting.
If adopted, the doctrine would, among other things, bar state courts from ensuring that state laws comply with a requirement, common in many state constitutions, that elections be “free and fair” — with potentially vast implications for rules on redistricting, citizen-led commissions and voting.
Understand the U.S. Supreme Court’s New Term
A race to the right. After a series of judicial bombshells in June that included eliminating the right to abortion, a Supreme Court dominated by conservatives returns to the bench — and there are few signs that the court’s rightward shift is slowing. Here’s a closer look at the new term:
Legitimacy concerns swirl. The court’s aggressive approach has led its approval ratings to plummet. In a recent Gallup poll, 58 percent of Americans said they disapproved of the job the Supreme Court was doing. Such findings seem to have prompted several justices to discuss whether the court’s legitimacy was in peril in recent public appearances.
Affirmative action. The marquee cases of the new term are challenges to the race-conscious admissions programs at Harvard and the University of North Carolina. While the court has repeatedly upheld affirmative-action programs, a six-justice conservative supermajority may put more than 40 years of precedents at risk.
Voting rights. The role race may play in government decision-making also figures in a case that is a challenge under the Voting Rights Act to an Alabama electoral map that a lower court had said diluted the power of Black voters. The case is a major new test of the Voting Rights Act in a court that has gradually limited the law’s reach in other contexts.
Election laws. The court heard arguments in a case that could radically reshape how federal elections are conducted by giving state legislatures independent power, not subject to review by state courts, to set election rules in conflict with state constitutions. In a rare plea, state chief justices urged the court to reject that approach.
Discrimination against gay couples. The justices heard an appeal from a web designer who objects to providing services for same-sex marriages in a case that pits claims of religious freedom against laws banning discrimination based on sexual orientation. The court last considered the issue in 2018 in a similar dispute, but failed to yield a definitive ruling.
On Wednesday, the Supreme Court held oral arguments in Moore v. Harper, a case stemming from a dragged-out brawl between North Carolina’s Republican-held legislature and the state’s court system over newly redrawn congressional districts.
To make a long story short: After the North Carolina Supreme Court threw out the legislature’s maps as an unconstitutional partisan gerrymander and imposed new maps, the lawmakers petitioned the U.S. Supreme Court — invoking the doctrine and asking the justices to rule on its validity for the first time. Republicans argued that state courts had essentially usurped the legislature’s authority in violation of the Constitution.
Amicus briefs poured in, including from conservative legal scholars who, breaking with proponents of the independent state legislatures theory, said the Republican lawmakers’ case was rooted in bad law and a slanted reading of history. Others argued that the justices would find themselves pulled increasingly into petty political squabbles if North Carolina lawmakers had their way. The Biden administration warned that a wrongly decided case would “wreak havoc in the administration of elections across the nation,” confronting voters with one set of rules for state elections and another for Congress and the presidency.
Going into this week’s oral arguments, at least three justices, Samuel Alito, Neil Gorsuch and Clarence Thomas, had expressed sympathy for the Republican Party’s position, but the views of the court’s three others conservatives were less clear. So on Wednesday, Neal Katyal, a former acting solicitor general representing groups who oppose the doctrine, proposed a compromise: that the Supreme Court set a “sky-high” standard before overruling its state counterparts. “It is the ultimate affront to sovereignty of a state,” he said, “to say its own state court got things wrong.”
It can be hazardous to guess what the Supreme Court will do. But as Adam Liptak, the chief legal correspondent for The New York Times, noted in our discussion, a majority of justices might be ready to make some big changes to the way American democracy works.
Here are a few noteworthy points from my conversation with Liptak:
It sounded to me like six justices were skeptical of the argument that state legislatures can’t be bound by state courts when it comes to federal elections. Basically, everybody but Alito, Gorsuch and Thomas. Does that sound right?
That’s one way to put it, and it’s not wrong. There did not seem to be a majority ready to adopt the most extreme version of a theory that would bar state courts from reviewing state laws concerning federal elections under their own constitutions.
But a majority of the court did seem prepared to take what would still be a big step: to let federal courts second-guess state rulings on state law in at least some cases where federal elections are at issue.
A lot of liberal groups were panicked that the Supreme Court took up this case. The gist of their concern was that a conservative majority would throw out decades of established election law and strip state courts of their ability to check what they view as a lot of dangerous, undemocratic laws coming from Republican-controlled state legislatures. Based on what you heard, is there still reason for them to worry? Or was that fear exaggerated?
Oh, they had good reason to worry, and they still do. Four conservative justices have written sympathetically about the theory, and it only takes five to form a majority. But the middle of the court — Chief Justice John G. Roberts Jr. and Justices Brett M. Kavanaugh and Amy Coney Barrett — seemed on Wednesday to be looking for a middle ground.
More on the U.S. Supreme Court
- Election Case: The Supreme Court seemed splintered about whether to adopt a legal theory that would radically reshape how federal elections are conducted. Here are some key points in the debate.
- A Clash of Rights: In a case over gay rights and free speech, the justices appear ready to rule in favor of a Christian web designer who says she has a First Amendment right to refuse service to same-sex couples.
- A Secret Influence Campaign: An anti-abortion activist led a secretive, yearslong effort to influence the justices of the Supreme Court. This is the story of the Rev. Rob Schenck.
- Another Breach: Years before the leaked draft opinion overturning Roe v. Wade, Mr. Schenck said he had been tipped off to the outcome of a landmark contraception case.
Are there any signs that the court might split the baby? That is, not fully agree with the North Carolina legislature, yet change the nature of federal elections in some important way? If so, what might a decision in the murky middle look like?
The compromise position — which, again, would still be a big step — would be to defer to state courts in this area unless they truly go rogue. But even that is at odds with the usual rule that the federal courts have no business reviewing state court rulings on questions of state law.
What to read
Richard Fausset and Lisa Lerer profiled Gov. Brian Kemp of Georgia, who has emerged as a powerful figure in his home state, and as a national model of a Republican who stood up to Trump and reaped political rewards.
Some Republicans in Georgia are questioning whether the rules for the Senate runoff backfired, Reid Epstein reports.
Nate Cohn sifted through the data and found that Republicans had great turnout in the midterm elections. It’s just that many of them voted for Democrats.
The House gave final approval on Thursday to a bipartisan bill enshrining the right to same-sex marriage in federal law. It now heads to President Biden’s desk.
Russia agreed to swap Brittney Griner, a professional basketball player who was caught with hashish oil on a trip to Moscow, for Viktor Bout, a notorious arms dealer known as the “merchant of death.”
Thank you for reading On Politics, and for being a subscriber to The New York Times. — Blake
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