While the Russian invasion of Ukraine chokes off water, food, and power for tens of thousands, a quieter assault on democracy in this country end up below the fold.
The Supreme Court on Monday allowed congressional maps that had been approved by state courts in North Carolina and Pennsylvania to stand, giving Democrats an advantage in this year’s election in two key states.
In issuing the orders, the Supreme Court rejected requests by Republicans to restore maps approved by G.O.P.-controlled state legislatures. Those district lines were thrown out and replaced by courts in both states after challenges by Democrats.
Under the new court-imposed maps in both states, Democrats are likely to gain more seats than they would have under the legislature-approved versions.
That is not the end of it. Observers note that four of the court’s conservatives favor disallowing state courts from overruling legislatures that rig elections for one party. Whatever state constitutions may say. Conservative scholars have concocted a tricksy new theory for neutering “free and fair” elections provisions.
Mark Joseph Stern explains at Slate:
Republicans appealed both court-draw maps to SCOTUS. They claimed that these plans violated the U.S. Constitution’s elections clause, which says that the “manner” of federal elections “shall be prescribed” by the “legislature.” For at least a century, SCOTUS has read this language to give other organs of state government a say in election law. But conservative scholars have devised a theory known as the “independent state legislature doctrine” that would give legislatures complete control over elections, including voting rules and redistricting. Under this theory, state constitutional provisions governing elections would be null and void, and state courts would have no power to intervene in election disputes. The legislature alone would set the rules—and, in extreme versions of the theory, even dictate the outcome of an election.
The Supreme Court has never endorsed this doctrine, and has explicitly rejected it as recently as 2015. There is a good reason why: It contradicts the original meaning of the elections clause as well as historical practice reaching back to the early days of the republic. A mountain of evidence proves that framers never intended to give states lone authority over federal elections, and instead expected state constitutions to impose substantive limits on election law. Exhaustive research demonstrates that—aside from a few opportunistic arguments raised by congressional partisans in the 19th century—state legislatures, state courts, federal courts, and Congress have all rejected the doctrine for more than two centuries.
Yes, but for most of those two centuries the dominance of American politics by wealthy white men was unchallenged. In the 21st century it is not. Thus, the “independent state legislature doctrine.” At least so long as there is a firm conservative majority on the Supreme Court that the conservative legal movement has spent decades constructing.
The Pennsylvania case was unique for plaintiffs asking for at-large districts for the first time since the 18th century. Under a 1941 law, as a last resort a state may use at-large districts if it fails to create new districts after a decennial census, Bloomberg reports.
The North Carolina case is clearer, Stern writes:
By contrast, the North Carolina case teed up the elections clause issue perfectly, and thus divided the court. Because it’s a shadow docket order, we don’t know exactly how each justice voted, but it appears that Chief Justice John Roberts and Justice Amy Coney Barrett joined the liberals in turning away the challenge without comment. Kavanaugh wrote that Republicans had “advanced serious arguments on the merits” but concluded that it was too late for the federal judiciary to intervene, citing the Purcell principle. Alito, joined by Thomas and Gorsuch, dissented, declaring the North Carolina Supreme Court had likely violated the elections clause by striking down the legislature’s congressional map.
Alito’s dissent, which wholeheartedly adopted the independent state legislature doctrine, is a masterclass in disingenuity. He omitted more than a century of SCOTUS precedent rejecting the doctrine. He ignored the Purcell principle, which he has consistently used to halt lower court orders protecting voting rights. He disregarded the North Carolina legislature’s express approval of judicial supervision over redistricting. And he dismissed the North Carolina Supreme Court’s decision as mere “legislation”—even though the majority engaged in an exhaustive overview of the state constitution’s guarantee that “all elections shall be free.”
“This guarantee of ‘free elections’ dates all the way back to the North Carolina Constitution of 1776,” Alito wrote, “but for 246 years that language was not found to prohibit partisan gerrymandering.” Implying that the court’s Democratic majority was motivated by politics rather than law, he fumed: “Only this year did the State Supreme Court change course and discern in the State Constitution a judicially enforceable prohibition of partisan gerrymandering.” (The long dormancy of a constitutional provision did not stop him from adopting a novel reading of the Second Amendment in 2008.)
Speaking of justices being motivated by politics, Stern retorts:
Alito also complained that the North Carolina Supreme Court cited state constitutional guarantees of free speech, assembly, and association, which “make no reference to elections.” Unmentioned is the glaring fact that the First Amendment does not mention elections, either, yet Alito has repeatedly used it to strike down election regulations. (It seems supporting Republican candidates counts as free speech while supporting Democratic candidates does not.)
This from the same justice who signed on to the opinion in Rucho v. Common Cause that allowed that while the U.S. Supreme Court has no role in prohibiting partisan gerrymanders, it did not rule that state courts might under state constitutions. “Now they’ve revealed it was a bait-and-switch,” Stern alleges.
Kavanaugh did not join Justices Samuel A. Alito Jr., Clarence Thomas and Neil M. Gorsuch in their finding, saying it was a matter best not addressed in an emergency action. But it seems clear that there are four votes to take up the North Carolina question in the next session.
Voters in both states get a reprieve from formally rigged elections for now.
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