Back in 2000, the justices by a 5-4 vote stopped Florida recounts and ensured that the state’s decisive Electoral College votes went to then-Texas Gov. George W. Bush over then-Vice President Al Gore.
A new dispute to be heard Wednesday, coming at an even more polarized time in US history, could be equally consequential, determining the ground rules for elections nationwide and, eventually, influencing who becomes president.
Rehnquist’s approach, which has become known as the independent state legislature theory, would give complete power to state legislatures to control election practices, at the expense of state courts ensuring constitutional protections.
If the court adopts his approach in a North Carolina dispute over the Constitution’s Elections Clause, the consequences could be staggering. It would prevent judges from throwing out unfair redistricting maps or invalidating measures that restrict access to the polls. If extended to the terms of the Electors Clause, state legislators could completely shape the appointment of a state’s presidential elections, even if contrary to the popular vote.
Wednesday’s case traces back to an extreme partisan gerrymander drawn by the Republican-controlled North Carolina legislature. The state supreme court struck down the map as a violation of the North Carolina constitution’s guarantees of free elections, equal protection, and free speech and assembly.
In their appeal to the justices, North Carolina legislators argue that legislatures have complete authority within the state on elections, free of any check by state judges based on state constitutional guarantees. The North Carolina state officials defending the state court, joined by Common Cause and outside public interest groups, said that view misinterprets the US Constitution and, if adopted, would reverse more than a century of Supreme Court precedent. …
Both sides in the controversy of the North Carolina partisan gerrymander delve deep into the structure of the Constitution and its history. Both insist their respective interpretation of the word “Legislature” should prevail.
Legal scholars, however, overwhelmingly endorse the view that binds state legislatures to their state constitutions.
North Carolina solicitor general Ryan Park and lawyers for the outside groups directly challenging the state legislators argue that the justices would be reversing the historical understanding if they rule that legislatures are free of their own state constitutional limits.
“It is rare to encounter a constitutional theory so antithetical to the Constitution’s text and structure, so inconsistent with the Constitution’s original meaning, so disdainful of this Court’s precedent, and so potentially damaging for American democracy,” lawyers for Common Cause and the other non-state parties said in their brief.