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The Supreme Court has rejected the Independent State Legislature theory

By: Nina Totenberg | NPR
Posted on: Tuesday, June 27, 2023

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WASHINGTON (NPR) — The U.S. Supreme Court ruled 6-3 that state constitutions can protect voting rights in federal elections and state courts can enforce those provisions, in a key opinion that should safeguard the integrity of the 2024 election.

In a practical sense, Tuesday’s U.S. Supreme Court’s decision will not make a difference in North Carolina, where Republicans retook control of the state supreme court after the 2022 election and the new GOP majority has since reversed a prior court’s ruling that redrawn congressional maps violated the state constitution with an extreme partisan gerrymander. That means that the legislature’s politically lopsided map will likely return in some form for the 2024 election, with little likelihood that it will change for the rest of the decade.

“Although the Elections Clause does not exempt state legislatures from the ordinary constraints imposed by state law, federal courts must not abandon their duty to exercise judicial review,” Chief Justice John Roberts wrote in his majority opinion. “This Court has an obligation to ensure that state court interpretations of state law do not evade federal law. For example, States ‘may not sidestep the Takings Clause by disavowing traditional property interests.’ … While the Court does not adopt a test by which state court interpretations of state law can be measured in cases implicating the Elections Clause, state courts may not transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections.”

Conservative Justices Clarence Thomas, Samuel Alito and Neil Gorsuch dissented.

At issue in the case was Article I of in the U.S. Constitution, which says that the “Times, places and manner of holding Elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof.”

The North Carolina legislature, backed by the Republican National Committee, read that clause as meaning that only the state legislature may make election rules, unless the Congress of the United States passes contrary legislation. In its most extreme form, that would have left both state courts and governors out of their traditional roles–with courts unable rule on state constitutional provisions or other laws involving elections, and governors suddenly deprived of their veto powers.

Opposing the Independent State Legislature theory in the Supreme Court were not only Democratic partisans, but a vast array of election law experts, important scholars on the left and right, judges appointed by both Republicans and Democrats, and the Conference of State Chief Justices, representing the chiefs in all 50 states.

It was widely expected that the court would moot the case because newly constituted North Carolina Supreme Court, for all practical purposes, is now in sync with the state legislature. But, Roberts wrote in his majority opinion: “The elections clause does not vest exclusive and independent authority in state legislatures to set the rules regarding federal elections.”

North Carolina has been in the eye of election storms before. In 2019, the U.S. Supreme Court, by a 5-to-4 vote, ruled that while partisan gerrymandering may be “incompatible with democratic principles,” the federal courts are powerless to rule on such “political questions.” But Chief Justice Roberts, writing for the majority, pointed to other remedies — specifically state legislation or state constitutional provisions “to limit partisan considerations in redistricting.” Unlike the federal constitution, state constitutions often have provisions that limit state legislatures ability to engage in partisan gerrymandering.

This story will be updated.