Blue state judges and liberal bureaucrats caught flak for littering their states with drop-boxes and accepting mail-in ballots during the 2020 election without permission from lawmakers. The Supreme Court is poised to stop them from doing it again in 2024.
The justices announced Thursday that they will hear a case later this year involving the "independent state legislature theory," which holds that state lawmakers alone control election procedures and redistricting. The news invigorated conservative groups who say bureaucratic tinkering with district lines and election laws is destroying public confidence in the political process.
"Dark money-fueled left-wing lawyers have misused the courts to manipulate election laws and undermine commonsense voting safeguards for political gain," the Honest Election Project’s Jason Snead said. "The Supreme Court now has the chance to uphold the Constitution and ensure that future elections have safeguards that make it easier to vote and harder to cheat."
The justices stepped into a heated debate by taking the case. Late-breaking changes to election procedures helped fuel former president Donald Trump’s narrative that Democrats stole the 2020 election. For their part, Democrats see the case as yet another attack on voting rights, and a bid to insulate pro-gerrymandering lawmakers from judicial scrutiny.
The Constitution provides that the "time, place, and manner" of elections shall be "prescribed in each state by the legislature thereof." A second rule with similar language governs selection of presidential electors. On that basis, Republican lawyers say each state legislature has the final say on election rules, such as voter ID laws or absentee balloting, as well as the decennial redistricting process. Neither state courts nor state agencies can interfere.
The case the Court took Thursday comes from North Carolina, where the state supreme court set aside a congressional district map state lawmakers crafted and imposed its own, which is friendlier to Democrats. Republican leaders in North Carolina’s statehouse appealed to the Supreme Court, and noted disputes about election regulation plagued the last election.
Ahead of the 2020 election, judges and bureaucrats across the country refashioned election rules on their own, citing the pandemic as justification. They suspended witness signature requirements for absentee ballots in South Carolina, relaxed deadlines for mail-in ballots in Minnesota, established universal vote-by-mail in California, and authorized drop boxes in Pennsylvania, all without input from lawmakers.
"The question presented in this case, at root, is who is vested with the power to decide the when, what, where, and how of the American people’s exercise of self-government," the North Carolina GOP’s petition reads.
A victory for North Carolina Republicans would have immediate national ramifications. Republicans control 30 statehouses, according to the National Conference of State Legislatures, and would be positioned to swiftly implement long-sought changes to voting rules without opposition from other branches of state government. They would also be in the driver’s seat for redistricting.
Top GOP entities like the RNC, the party’s congressional campaign arm, filed an amicus brief backing North Carolina Republicans.
The Court’s conservatives have already signaled their sympathy with the independent legislature position. In March, North Carolina Republicans asked the justices for an emergency order reinstating the legislature-drawn district lines. The High Court refused that request. In an opinion accompanying the order, Justice Samuel Alito said the Court will be forced to weigh in—and the sooner the better.
"If the language of the Elections Clause is taken seriously, there must be some limit on the authority of state courts to countermand actions taken by state legislatures when they are prescribing rules for the conduct of federal elections," Alito wrote. Justices Clarence Thomas and Neil Gorsuch joined the opinion. Justice Brett Kavanaugh has expressed similar views.
Critics counter that independent legislature doctrine is hostile to states’ rights. Each state has laws and constitutional provisions which guarantee voting rights. Administrators and state courts enforce those laws to protect the political process. If the Supreme Court privileges the legislature over state constitutions and other branches of government, critics say, it will undermine federalism.
The idea that legislatures have unchecked power over elections was central to Trump’s push to undo election certification in several states. A coterie of outside loyalists urged Republican lawmakers in battleground states to ignore the election results and select pro-Trump electors, citing the untested independent legislature doctrine.
It is far from obvious that statehouse primacy on election regulation empowers lawmakers to ignore the will of the people. But progressives nonetheless cast Thursday’s grant as a sign the High Court will help Republicans cheat in 2024.
"We are witnessing a judicial coup in process," Rep. Alexandria Ocasio-Cortez (D., N.Y.) wrote on Twitter.