The Supreme Court today took on the dramatic and historic assignment of ruling on the power of state legislatures to exercise unchecked control over elections for Congress and the Presidency. At the center of that constitutional controversy is the theory that President Trump and his allies used in an attempt to overthrow the 2020 election and keep him in office.
That attempt at what a lower federal court judge has called a “coup” is now under intense scrutiny by the special House committee investigating the violent attack on the Capitol on January 6, 2021.
If the Court follows its usual timetable, a final ruling would not come out in time to affect this year’s national elections or have impact on what the congressional committee does in a report due before this year’s elections.
But if the theory were to be upheld – and it already has some support from four of the nine Justices – it could be decisive for elections to Congress and the White House in 2024 and beyond.
At issue is the long-debated “independent state legislature theory” – the idea that those lawmaking bodies control federal elections without any interference from state courts applying state constitutions.
The new case the Justices will hear does not arise out of the 2020 election that Donald Trump complains was stolen from him, but focuses on future elections in North Carolina’s 14 congressional districts.
The theory has actually loomed over American elections for well over 100 years, and has been actively debated among politicians and scholars for most of the past quarter-century – since the very close presidential election in 2000 that was settled by the Supreme Court, putting George W. Bush in the White House. The theory played only a minor role in that decision, and its constitutionality was not tested then.
There is another, deeply important reason why this case is so significant: it is one of the first tests before the Court on whether state courts, applying their own state constitutions, will have power to curb partisan “gerrymandering” of congressional seats by state legislatures.
That is the process of drawing the boundaries of election districts to give one political party a special advantage and thus win the most seats.
State court authority to curb that kind of partisan maneuvering is now even more important since the Supreme Court ruled three years ago that the national Constitution imposes no barrier to such partisan manipulation of House seats.
The new case turns fundamentally upon the meaning of the so-called Elections Clause in Article of the U.S. Constitution. That gives the state legislatures the power to “prescribe…the times, places and manner of holding elections for Senators and Representatives.” Congress has a back-up veto power over state laws for those elections; whether that will figure in this case is not clear yet.
For election of the President, the Constitution’s Article II also gives the state legislatures a central role, assigning those lawmakers the power to decide the method for choosing members of the national Electoral College that actually decides the winner. Each state now assigns to the voters the primary task of voting for presidential electors, casting their votes for elector slates representing the candidates. But as the Trump maneuvering unfolded, it was an attempt to have state legislatures pick the electors themselves, no matter how the elections had come out.
While the North Carolina case to be heard by the Court involves, at this stage, only the Elections Clause affecting House elections, the same constitutional theory that is being tested also could affect presidential elections, too.
When North Carolinians go to the polls this November, they will do so in 14 U.S. House of Representatives districts, drawn up under a state court order, that gives each major political party a realistic chance to win seven seats each.
Right now, under partisan-skewed maps used in 2020, Republicans have eight seats and the Democrats five, even though each party actually split evenly in the 2020 statewide vote total. (North Carolina currently has 13 House seats, but gained one for the future due to population growth that was counted in the 2020 Census.)
The Republican-controlled state legislature, acting under an earlier court order to replace a broadly gerrymandered plan, drew maps that probably would have assured the GOP eight seats and the Democrats six seats. That, too, was struck down by state courts as a violation of several clauses in the state constitution because of its partisan slant.
A panel of court-appointed election experts drew up a new map, for use only this year, that is likely to result in eight GOP and six Democratic seats in the House but appears to create an opportunity to achieve a seven-seven split.
Republican leaders of the legislature took the dispute on to the Supreme Court. Earlier, they tried to get the Justices to put the new maps on hold for this year, but the Court refused in March by a vote of 6 to 3. At that time, though, four Justices said the underlying constitutional dispute was so important that the Court should take it on.
That’s what happened this morning, in an order granting review. The Court did not disclose how the Justices voted on that question, but it would have taken at least four votes.
Here is the specific question the Court agreed to answer:
“Whether a state’s judicial branch may nullify the regulations governing the ‘manner of holding elections for Senators and Representatives . . . prescribed . . . by the legislature thereof,’ U.S. Constitution Article I, Section 4, Clause 1, and replace them with regulations of the state courts’ own devising, based on vague state constitutional provisions purportedly vesting the state judiciary with power to prescribe whatever rules it deems appropriate to ensure a ‘fair’ or ‘free’ election?”
The case will not come up for a hearing until the Court’s new term, which opens on October 3, and probably will not be decided until sometime in 2023. It will take five votes to decide it.
Last March, when the Court refused to block the state court-sponsored House maps, four Justices wrote that they considered the question to be important and worthy of the Court’s review. Justice Brett M. Kavanaugh wrote only for himself; he was not in favor of delaying the new maps, but spoke with approval of the need to decide the basic question. Three other Justices who would have temporarily blocked the maps for this year wrote more enthusiastically about the underlying issue: Samuel A. Alito, Jr., Neil M. Gorsuch and Clarence Thomas. Those three said that “there can be no doubt that the question is of great national importance.”
The underlying theory can be traced back to an 1892 Supreme Court decision, in the case of McPherson v. Blacker. In that ruling, the Court upheld a Michigan state law that presidential electors be chosen by districts rather than statewide. In reaching that result, the Court spoke expansively about the “plenary power” given to state legislatures by the Elections Clause to decide how to choose presidential electors. The power can seldom be checked, that opinion suggested.
The Supreme Court briefly discussed that theory, but left it uncertain, when it settled the 2000 election in President George Bush’s favor.
Then-Chief Justice William H. Rehnquist wrote a separate opinion in that case, interpreting the 1892 decision even more broadly. He was joined by two other Justices – one of whom is still on the Court, Justice Thomas. (The other was Justice Antonin Scalia. He and Rehnquist have since died.)
Chief Justice John G. Roberts, Jr., was not on the Court at that time, but he was among the team of lawyers who worked to promote Bush’s victory in 2000. When the current Court took a preliminary vote in the North Carolina congressional case in March, Roberts did not support delaying the use of the court-approved plan this year.
The Rehnquist opinion from 2000 has figured prominently in the continuing dispute over the 2020 Biden-Trump presidential election, and also is cited in the filings in the new North Carolina case.
The voters who successfully challenged the legislature’s maps in state court tried to persuade the Justices not to hear the case, claiming that the Court had no power to do so because those maps are the result of only an interim, not a final, order by the state court and because the legality of the maps is still being sorted out in state courts, with no final ruling yet by the North Carolina Supreme Court.
The fact that those arguments did not persuade the Justices to turn aside review of the dispute was a strong sign that some of the Justices consider it to be so important that they will try to find a way to settle the question despite procedural limits on ruling at this point.