Election law experts are carefully watching the case, believing that the justices will ultimately reject a request from Republicans to freeze an opinion by the North Carolina Supreme Court that blocked a congressional map, drawn by the GOP-led legislature, that favors Republicans. Among other reasons, the justices may not want to step in with changes too close to election deadlines.
But embedded in the case are arguments that have attracted some members of the court’s right wing in the past as they apply to setting election rules and played a role in the litigation surrounding then-President Donald Trump’s quest to use the courts to overturn Joe Biden’s presidential election victory. If a majority of the court were ever to adopt those arguments, it could profoundly change the landscape of election law.
The questions involve a theory that state courts cannot interpret their own state constitutions when it comes to congressional redistricting and under rules related to federal elections. The theory is called the “Independent State Legislature claim” in legalese. The Electors Clause of the US Constitution vests “state legislatures” with the power to appoint presidential electors “in the manner” they choose. The Elections Clause gives them control over the “Times, Places and Manner” of holding elections. Under the theory being pushed, “legislature” excludes a role for state courts. …
“The elimination of state autonomy is inconsistent with the historical practice and the intent of the Election Clause and invites the risk that federal courts will wrongly interpret state law — a significant risk given the difficulty federal courts have in mastering 50 different States’ laws,” Allison Riggs, a lawyer for Common Cause, argued in court papers. She said to accept the Republicans’ argument “that partisan gerrymandering claims are immune from state constitutional scrutiny by state courts would require this Court to overrule a century of precedent.”
“It would lead to an unprecedented upheaval of current election law and foreclose any legal relief for voters from extreme legislation, which state courts already found to be undemocratic,” Riggs said in an interview.