WASHINGTON — When the North Carolina Supreme Court struck down Republican-drawn electoral district maps in February, Rep. Tim Moore, the Republican speaker of the state House of Representatives, reached for some potent ammunition.
Appealing to the US Supreme Court, he and his allies embraced a hitherto obscure legal argument called the «independent state legislature» theory, which critics say could change election law if judges accept it in court. a case that is discussed on Wednesday.
Moore said in an interview that he supported the theory because it’s the only way to challenge a state court ruling that he believed was not based on law or precedent.
“This ruling by the North Carolina Supreme Court was one more ruling that many of us believed was beyond what we had seen done in a state court and was really just a political ruling,” he said, citing other rulings with which he that he had disagreed.
The case, which could have a wide impact on a variety of electoral issues, is being closely watched for its potential impact on the 2024 presidential election.
‘Illegal Partisan Gerrymanders’
The North Carolina Supreme Court, whose justices are chosen in partisan elections, held that the 14 congressional districts — drawn by the Republican-controlled Legislature to maximize the influence of Republican voters in a state heavily contested by the two major parties — were “illegal partisans.” gerrymanders.” The court, which then had a Liberal majority, said the maps violated several state constitutional provisions, one of which requires that «all elections be free.»
Voting rights advocates and Democratic voters turned to state court after the US Supreme Court ruled in 2019 that claims of partisan district rigging could not be heard in federal court while leaving open the possibility of that state courts could address the issue.
The Republicans, led by Moore, immediately asked the Supreme Court to reinstate the maps. The court agreed to take the case, but left behind a replacement map that was used for this year’s midterm elections. Democrats and Republicans each won seven seats. In the 2020 election, using an earlier map before North Carolina won one seat as a result of that year’s census, Republicans won eight seats and Democrats five.
The independent state legislature theory asserts that state legislatures have the final say on election laws, potentially shielding their actions from state courts. The argument, advanced by conservative lawyers, stems from language in the Constitution that says electoral rules «shall be prescribed in each state by the legislature thereof.»
Supporters of the theory, which has never been upheld by the US Supreme Court, say the language supports the notion that legislatures hold ultimate power under state law, potentially regardless of possible restrictions imposed by state law. state constitutions. A version of the argument was used by supporters of former President Donald Trump in their attempts to overturn the results of the 2020 presidential election, and it also surfaced in the 2000 presidential election during litigation in Florida that ultimately led to the inauguration of the Republican president. George W. Bush.
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 it indicated some support for him, giving his supporters hope that they might be a majority willing to accept him.
“The constitution provides that state legislatures, not federal judges, not state judges, not state governors, not other state officials, have primary responsibility for setting election rules,” Conservative Justice Neil Gorsuch wrote when the court adjourned. refused to comment on a 2020 case. .
bug or windshield
There are several different versions of the independent state legislature argument, varying in scope, some of which would simply limit the authority of state courts in certain circumstances and others of which would go further by granting legislatures virtually unlimited authority.
A Supreme Court ruling adopting the theory would affect not only redistricting disputes but also other election-related rules, on issues such as voting by mail and voter access to the polls, that state legislatures could attempt to enact even when state courts have held that they violate state constitutions. The theory could also call into question the power of governors to veto legislation and of state election officials to make decisions overseeing vote counting.
Moore said he disagreed with broader versions of the argument that could be used to challenge the certification of election results. He also said that he believed the governor had the power to veto election legislation, a procedure called into question by at least one interpretation of the independent state legislature theory.
“I wouldn’t go that far,” he said.
But he said state courts should not meddle with the Legislature’s ability to pass election laws that set early voting rules or limit its power to pass restrictions such as requiring voter identification.
“I think that should be left up to the Legislature. I really do,” she said.
Moore conceded that a ruling that weakens state courts could also benefit Democrats in future cases when they control the Legislature and the state Supreme Court leans conservative, as it will in North Carolina after some seats flipped. November elections. (The The legislature also remains under the control of the Republican Party..)
«A wise person recognizes that an argument or a rule that benefits his political side today is something that may hurt his side tomorrow,» he said. «Some days you are the bug, and some days you are the windshield.»
Allison Riggs, an attorney with the Southern Coalition for Social Justice representing plaintiffs challenging the Republican-drawn maps, said Moore’s concessions on the scope of the theory are not reflected in the legal briefs his lawyers filed. .
“I read the writings as if they were still defending a very extreme version,” he said in an interview.
Although conservatives are pushing the argument for an independent state legislature in aid of the GOP, not all conservative legal experts agree with the premise. Steven Calabresi, one of the founders of the Federalist Society, a prominent conservative legal group, joined a report by a friend of the court that pointed to the theory.
Another writing that opposes the theory. it was introduced by Thomas Griffith, a former conservative Bush-appointed appeals court judge, and other former Republican officials. A famous Republican, former California Governor Arnold Schwarzenegger, made a similar report. Michael Luttig, another former conservative Bush-appointed judge, joined the legal team defending the North Carolina ruling.
“This is the most important case on American democracy and for American democracy in the history of the nation,” Luttig said on a recent call with reporters.
Supporters of the theory in briefs filed with the court include John Eastman, the attorney involved in Trump’s efforts to overturn the 2020 election who argued that then-Vice President Mike Pence could block President Joe Biden’s certification of victory on January 6, 2021. (Senior Counsel to Pence, including his lead attorney, concluded that this was not within the power of the vice president.)
Several conservative groups that push for greater voting restrictions and say voter fraud is a major problem also backed the theory in court.
Democrats and voting rights activists have issued stark warnings about the potential impact of the case in light of attempts to undermine or overturn the results of the 2020 presidential election, though many high-profile Republican candidates who have denied or questioned the Biden’s victory they lost in this year’s election. midterm elections. Defying expectations, Democrats won several key races in important battleground states and, perhaps most important, made gains in some state legislatures.
Republicans no longer have control of both houses of the Pennsylvania Legislature, for example, as Democrats won a narrow majority in the House. Democrats also changed control of both houses in the Michigan Legislature.
Despite those developments, Riggs, the voting rights advocate, remains pessimistic about the future, pointing to Trump’s announcement that he will run for president in 2024, opening up the possibility of a repeat of the kind of behavior that resulted in the riots on January 6. at the United States Capitol.
“It would be crazy to assume that we are past this moment of election denial,” he said. «I’m still not going to let my guard down.»