WASHINGTON — The Supreme Court will hear a major case on Wednesday that could upend election law as justices consider restoring Republican-draw congressional districts in North Carolina.
The appeal by North Carolina Republicans asks judges to adopt a hitherto arcane legal argument called the ‘independent state legislature’ theory, which could strip state courts of the power to strike down certain election laws passed by state legislatures.
The theory has been embraced by supporters of former President Donald Trump, who cited it during various instances during the 2020 presidential election and its aftermath.
The case, which could have a broad impact on a range of electoral issues, is being watched closely for its potential impact on the 2024 presidential election.
Republicans led by Tim Moore, the Republican speaker of the North Carolina House of Representatives, invoked the theory after the state Supreme Court struck down the congressional district map in February.
The state court ruled that the 14 congressional districts — drawn by Republicans to maximize the influence of Republican voters in a state heavily contested by both major parties — were “illegal partisan gerrymanders.” The court, which then had a liberal majority, said the cards violated various state constitutional provisions, one of which requires that “all elections be free.”
Suffrage advocates and Democratic voters had turned to state court after the US Supreme Court ruled in 2019 that partisan gerrymandering claims could not be heard in federal court, but left open the possibility that the state courts could settle the matter.
Moore and other Republicans immediately asked the Supreme Court to reinstate the maps, saying the state court exceeded its authority. The high court agreed to take up the case, but left in place a replacement card used for this year’s midterm elections. Democrats and Republicans each won seven seats.
The Independent State Legislature argument rests on the language of the Constitution which states that election rules “shall be prescribed in each State by the Legislature thereof.”
Proponents of the theory, which has never been endorsed by the Supreme Court, say the language supports the notion that, with respect to federal election rules, legislatures have ultimate power under the law of the federal election. state, potentially independently of potential constraints imposed by state constitutions.
In addition to being raised by Trump and his allies in 2020, the theory also surfaced during the 2000 presidential election during the Florida litigation that ultimately led to Republican President George W. Bush taking office. .
The Supreme Court in 2020 declined to intervene in the various election-related cases that raised the theory, but during the litigation four conservative justices indicated some support for it, giving its supporters hope that they might be a majority willing to adopt it. The court has a 6-3 conservative majority.
There are several different versions of the argument, some of which would simply limit the authority of state courts in certain circumstances and others which would go further by giving legislatures virtually unchecked authority.
A Supreme Court ruling that embraces the theory would not only affect redistricting disputes, but also other election-related rules on issues such as mail-in voting and voter access to ballot boxes that legislatures could seek to enact even when state courts have ruled that such rules violate state constitutions. The theory could also challenge the power of governors to veto legislation.
Those who support the theory in court briefs include John Eastman, the attorney involved in Trump’s efforts to void the 2020 election who argued that then-Vice President Mike Pence could block certification of President Joe Biden’s January 6, 2021 victory.
Various conservative groups that push for greater restrictions on voting and say voter fraud is a major problem have also backed the theory in court.
Democrats and suffrage activists have issued stark warnings about the potential impact of the case in light of attempts to overturn the results of the 2020 presidential election, although many top candidates in the GOPs who have denied or questioned Biden’s victory lost in this year’s midterm elections. .