I’ve written quite a bit about the Independent Legislature Theory over the past year or so and it really does look like it’s going to be seriously contemplated by the Supreme Court. This is a pretty good explainer on what that might mean:
Legal experts and voting rights advocates warn the independent state legislature doctrine could radically alter election administration across the country, and siphon power away from courts and toward the legislatures that write election law. That would leave partisan politicians, rather than independent administrators, overseeing elections — possibly even overturning results they don’t like.
Constitutional scholars have widely panned the theory, arguing that it advances an inaccurate interpretation of the U.S. Constitution and pointing out that it has never been embraced in past rulings. State courts, they contend, have long been able to act as a check on the state legislatures, ensuring lawmakers follow the spirit of the state’s constitution.
“The legislature is created by the state constitution, so it must be limited by it,” said Carolyn Shapiro, a professor at the Chicago-Kent College of Law. “The notion that [lawmakers] are freestanding entities to do anything they want in this context is inconsistent with constitutional democracy.”
If U.S. Supreme Court justices were to legitimize the theory in a ruling, the move would transform the way elections are governed, virtually giving state legislatures a blank slate to set voting rules and to draw congressional maps, said Joshua Douglas, professor at the J. David Rosenberg College of Law at the University of Kentucky.
“It’s concerning for our concept of representation,” he said. “It means that those who are most self-interested in retaining their positions also have the most power now in dictating the rules of the game.”
This is where it’s heading:
The Pennsylvania lawsuit pits a group of Republicans, including a county commissioner who helps oversee local elections, against Democratic Gov. Tom Wolf and his administration. The GOP group is represented by Jonathan F. Mitchell, the lawyer behind a six-week abortion ban in Texas that is enforced by private citizens. The U.S. Supreme Court has so far allowed that law to stay in place.
The justices declined to hear the Pennsylvania Republicans’ emergency map petition on technical grounds. The case was assigned to a three-judge federal court panel.
At issue is a citizen-submitted congressional map picked by the Pennsylvania Supreme Court in February following months of debate and an impasse between the Republican-led legislature and Wolf, who vetoed a GOP-passed proposal because of its partisan bias.
Citing the independent state legislature doctrine and population differences among districts, the Pennsylvania plaintiffs filed an emergency application asking the U.S. Supreme Court to reject the map and instead implement at-large elections — which would let all of a state’s voters cast ballots for each seat — for the 2022 midterm elections.
Attorneys for the Wolf administration argue that at-large congressional elections are illegal under federal law and that courts are obligated to redraw maps when the state legislatures fail to do so. The lawyers cite a 2003 U.S. Supreme Court ruling in a similar case in Mississippi, in which the legislature failed to pass a new map and a federal district court adopted one.
In 1967, Congress passed a law that banned at-large congressional elections following a series of election changes that included the Voting Rights Act of 1965.
“The problem with [at-large congressional elections] is that it violates federal law,” said Bertrall Ross, a professor at the University of Virginia School of Law who studies constitutional law. “I don’t see how that remedy can be adopted.”
For that reason, he said, it’s unclear what would happen if the U.S. Supreme Court removed state courts from the redistricting process and a governor and legislature reached an impasse on a map.
At the request of the Wolf administration and the citizen group that proposed the map selected by the Pennsylvania Supreme Court, the federal district court recently dismissed much of the suit — including the claims citing the doctrine. The Republican plaintiffs lacked standing, the court found.
In North Carolina, the state’s high court earlier this year ruled the congressional map picked by the GOP-led legislature was gerrymandered. A superior court in Raleigh adopted a new map, and the state Supreme Court refused to block it.
The North Carolina Republican lawsuit argues that the state court’s actions were unconstitutional and, under the doctrine, only Congress has oversight over state election rules.
The group filed an emergency application asking the U.S. Supreme Court to stay the map. The court rejected that request, but four justices appeared open to considering a formal appeal next year — enough to potentially secure the case’s place on the calendar.
It’s a big roll of the dice for the Supreme Court to hear this case. Thomas, Alito and Gorsuch are ready to go. Kavanaugh didn’t go with it this time but indicated that he was open to it. All they need is Barrett or Roberts and we will have taken a giant leap into the abyss.
Yeah: