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Supreme Court case suffrage experts say could bring ‘chaos’ to election

A Supreme Court case that will decide the power exercised by state legislatures over congressional and presidential elections could have far-reaching implications for American democracy, some suffrage experts have said.

The Supreme Court said Thursday it will consider a North Carolina case that focuses on whether the state’s Republican-led legislature is the only entity that can set the rules for federal elections.

This argument is often referred to as the doctrine of independent state legislature, a legal theory that only state legislators have the power to make rules for federal elections. Some conservatives have advanced this position in recent years, pointing to a provision of the U.S. Constitution that states that the mode of federal elections “shall be prescribed in each state by the legislature thereof.”

State courts currently have the power to intervene if they determine that state legislatures’ election rules violate the state constitution or other laws, making them a powerful check and balance to partisan legislatures. Allies of former President Donald Trump have made such claims during disputes over the 2020 election, and while state and federal courts have largely shot them down, at least four Supreme Court justices have spoken out against them. interest.

While the Supreme Court could take a wide range of actions in the North Carolina case, experts and suffrage advocates say an unqualified endorsement of the state’s independent legislature theory by a court that has a 6-3 conservative majority could push back the limits on partisan gerrymandering, untie voter-implemented changes like preferential voting and voter discrimination protections found in state constitutions and Moreover.

Such a move would put state election codes and Congressional redistricting plans entirely in the hands of partisan state legislatures, many of which have been repeatedly criticized by state courts and others for aggressively manipulating and enacting restrictive electoral laws.

“We think that’s a dangerous notion and would bring chaos to our election laws if upheld,” Michael Waldman, president of New York University’s Brennan Center for Justice, told reporters shortly. after the court said it would take “It would be an extraordinary power grab by political actors if upheld, and it would make it much, much more difficult or impossible for state courts to enforce the right to vote , to fight against gerrymandering and to uphold the rights of citizens in our elections.

It could be “one of the biggest, if not the most destructive, cases of American democracy,” said Waldman, whose organization is advocating for broader voting access rules and suing regularly sues to challenge policies it considers discriminatory or repressive.

The case in question centers on Republican lawmakers in North Carolina’s argument that they should be able to draw the state’s congressional redistricting maps however they choose. The state Supreme Court said Republicans had “systematically” made it harder for Democrats to elect members of their choosing and barred the Legislature from using its favored card.

“They’re basically looking for a blank check to continue partisan gerrymandering,” Tom Wolf, deputy director of the democracy program at the Brennan Center for Justice, told reporters after the ruling.

The Supreme Court declined to curb partisan gerrymandering in North Carolina and other states in a 2019 ruling, but in recent years state courts have stepped in, particularly in states where voters have changed the state constitutions to restrict gerrymandering.

Using ballot initiatives, voters passed new redistricting rules and procedures in states including Michigan, Ohio, New York, Colorado, Missouri, Florida and Utah.

For example, in Michigan, an independent citizens’ commission now draws state redistricting maps instead of state legislators. In New York, courts this year struck down state lawmakers who sought to circumvent a new redistricting commission and enact gerrymandered maps.

If the Supreme Court were to wholeheartedly endorse the doctrine of an independent state legislature, all of these commissions and proceedings could be subject to legal challenges that could undermine their power over federal elections.

“Constitutional amendments initiated by voters are one of the few restraints on the power of state legislatures to manipulate the process for their own interests,” said Rick Pildes, constitutional law expert and professor at Illinois School of Law. New York University. “And if the doctrine concluded that the state legislatures are free from their state constitutions, that would remove that control.”

In a 5-4 decision in 2015, the Supreme Court upheld the power of voters to create a redistricting commission in Arizona.

But election expert Rick Hasen said the composition of the court has changed so much since then that he may decide to reverse his own precedent – as he did last month by overturning Roe v. Wade and Planned Parenthood v. Casey, decisions that had protected abortion rights across the country. .

“Most justices of the majority [of the 2015 Arizona case] are gone. Chief Judge [John] Roberts, on behalf of the four dissenters, wrote one of his strongest dissents,” added Hasen, a law professor at the University of California, Irvine.

Voters also implemented new open primaries or preferential-choice voting systems in Alaska, California, Washington and Maine — or both, in the case of Alaska — that could be rolled back from the election. same way.

Experts say there are narrower readings of the doctrine that could be endorsed: a ruling could prevent election administrators and elected officials from making decisions that are not clearly spelled out in legislation or from taking executive action in emergency, but maintain the authority of the state constitutions and courts, for example.

“While I think there is a risk of an earthquake of a ruling, I also think we should not overreact just yet because there are good legal arguments as to why the Supreme Court does not going down that road,” Hasen said.

One of those arguments may also be logistical: Experts have said that almost any endorsement of this theory would dramatically increase the number of election issues and issues that are sent to federal courts and appealed to the Supreme Court.

“It would put them in a position where they would have to oversee all of this,” he said. “This takes lots of time.”

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