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Proponents of voting rights sounded the alarm on Friday, a day after the U.S. Supreme Court said it would consider a conservative legal theory that would give state legislatures virtually uncontrolled power over federal elections, warning it could erode. the basic principles of American democracy.
The idea, known as the “theory of the independent legislature,” represents for some theorists a literal reading of the Constitution.
But in its greatest reach interpretation, could cut state governors and courts from the decision-making process on electoral laws while giving state lawmakers are free to change the rules to favor their own party. The impact could extend to the 2024 presidential election and beyond, experts say, making it easier for a legislature to ignore the will of its state’s citizens.
This immense power would go to legislative bodies that are themselves undemocratic, many advocates say, because they have been tasked with creating partisan districts, practically. ensure that the candidates of the ruling party cannot be defeated. Republicans control both legislatures in 30 states and have been at the forefront of the theory.
The Supreme Court’s choice to hear the case came less than a week after the country’s highest court overturned Roe vs. Wade, leaving it to the state legislatures to decide whether abortion should be legal, and two days after the splendid testimony before the committee investigating the January 6, 2021 attack on the U.S. Capitol.
The committee has offered new evidence suggesting that President Donald Trump tried to disrupt the counting of electoral votes in Congress to give state legislatures time to send alternative voter lists. as part of an attempt to nullify the results of the 2020 elections.
State legislatures have already introduced or enacted laws in several GOP-controlled states that, according to voting rights groups, make it difficult to cast votes. Experts say that if the Supreme Court adopts the theory of the independent legislature, it would give state legislators ultimate control over election-related decisions, such as redistribution of districts, as well as issues such as voting grades and postal voting.
“This is part of a broader strategy to hinder voting and impose the will of state legislatures regardless of the will of the people,” said Suzanne Almeida, director of state operations for Causa Comuna, a nonpartisan group. pro-democracy. “It’s a significant shift in the power of state courts to control state legislatures.”
The case could also open the door for state legislatures to demand ultimate control over voters in presidential elections, said Marc Elias, a veteran Democratic voting lawyer.
“If you believe the strongest form of [the theory] then lawmakers can do whatever they want and there is no judicial review of that, “Elias said.” As I see it, Republicans tried to subvert the 2020 election, but they were clumsy and are now learning from where the pressure points and vulnerabilities of our electoral systems are and perfecting their tactics. “
The case that will go before the high court originates with the Republicans of North Carolina, who are appealing a decision of the state supreme court that overthrew the new state Congress map as an unconstitutional gerrymander.
Republicans argue that the election clause in the Constitution, which says “The time, places and manner of holding elections for senators and representatives, will be prescribed in each state by its legislature.” means that only legislatures have power over election-related activities. Past interpretations have taken the clause as meaning state governments as a whole, including voters and the executive, legislative and judicial powers.
“This false ‘doctrine’ is an anti-democratic Republican takeover disguised as legal theory. It was cooked in a right-wing legal greenhouse by political actors seeking to give state legislatures the power to revoke the will of American voters in future elections, “Sen. Sheldon Whitehouse (DR.I.) said in a statement to The Washington. Publication.
The theory, Whitehouse said, was exercised by Trump’s attorney, John Eastman, when he intended to “take the last presidential election, and could plant seeds of chaos in time for the next ones. The fact that the Court is considering even a case involving such an extreme idea shows how indebted it is to right-wing donors who have gotten the job of so many of the judges. “
Among the most open advocates of the theory of the independent state legislature is the Honest Elections Project, an alias of Fund 85, a conservative nonprofit organization linked to Leonard Leo, the former head of the Federalist Society. Fund 85 recorded revenues of more than $ 65 million in 2020, according to a tax filing, and its relationship to the Honest Elections Project is clear in Virginia’s corporate records.
The draft honest election has defended the theory of the independent state legislature in amicus writs filed in the Supreme Court in recent years. He cited the theory by name in a January letter in a dispute, also arising from North Carolina, over whether state lawmakers could intervene in a litigation that challenged the state’s voter identification law. The high court ruled 8-1 in favor of lawmakers on June 23, but did not assess the merits of electoral identity laws or legal theory.
In his amicus brief, the Honest Elections Project noted that the Supreme Court had discussed the theory, but never made it clear “that doctrine is our law.”
“I should do it here,” the group urged in its writing.
The draft fair election made several references to a 2021 article in the Fordham Law Review that explained the theory. The author of the article, Michael T. Morley, is a professor in the Faculty of Law at Florida State University and a contributor to the Federalist Society.
An earlier draft of the Honest Elections Project, in a dispute over the 2020 election between Pennsylvania Republicans and the Democratic secretary of state, did not cite the theory by name, but argued that the legislatures States have broad authority over federal elections, without restrictions by state constitutions. .
The plaintiff’s chief attorney, David B. Rivkin Jr., a lawyer who served in the Ronald Reagan and George HW Bush administrations, said the theory, if accepted by the Supreme Court, would not protect election maps. challenges based on racial discrimination or other claims rooted in the U.S. Constitution or federal statute. But it would nullify other reasons for rejecting state maps, including partisan gerrymandering claims. In 2019, the Supreme Court ruled that federal courts had no jurisdiction over partisan gerrymandering claims, leaving that issue to state courts.
Proponents of voting rights point to this decision, specifically a quote from court president John G. Roberts Jr., as evidence that the Supreme Court has previously believed state courts have a supervisory role.
“The provisions of state statutes and state constitutions can provide standards and guidance for state courts to apply” in the management of partisan manipulation, Roberts wrote for the majority in Rucho v. Common cause.
Rivkin, in an interview, promoted his role in perfecting the theory. He dismissed concerns that would pave the way for state legislatures to achieve the kind of electoral manipulation that Trump and Eastman seek. Rivkin said he put no value on “stupid arguments used by Trump.”
“If you ask me as a strictly constitutional and analytical issue, state legislatures can regain the power to choose the voters themselves,” he said. “I can also tell you as a pragmatic issue, I don’t know of any state legislature that has done that.”
Jason Snead, the executive director of the Honest Elections Project, created in 2020 to counter Democratic efforts to expand voting rights, similarly removed predictions that state legislatures would usurp power to elect voters. Snead, in an interview, argued that the doctrine “should be taken out of the context of January 6 and what happened that day, which was absolutely terrible.”
“This is not a new idea,” he said. “We are talking about first principles and constitutional text.”
But the language of the Constitution relating to elections has never been interpreted in this way. A version of the theory of the independent legislature gained some acceptance during the Bush vs. Gore demand that determined the outcome of the 2000 elections, in which the court was set aside with the Republicans. Judges William H. Rehnquist, Antonin Scalia and Clarence Thomas wrote a concurring view that the Supreme Court could overturn a state Supreme Court’s interpretation of its electoral laws to “preserve the power of the state legislature over how to ‘state leads presidential election’.
Fifteen years later, the court narrowly rejected a challenge from the Arizona Republican-led state legislature using the theory of the independent legislature to argue against an independent district redistribution commission that drew maps.
In a 2020 case on postal voting deadlines in Wisconsin, Judge Neil M. Gorsuch seemed to endorse the theory, and wrote, “The Constitution states that state legislatures, not federal judges, not state judges, not state governors , or other state officials – Have the primary responsibility for establishing election rules. ”
David Cohen, founder and CEO of Forward Majority, a nonprofit organization designed to elect Democrats to state legislatures, said the fact that the Conservative-leaning Supreme Court is entertaining the idea makes his group’s work much more urgent.
“For me, the scary versions of this are legislators throwing valid U.S. votes to get their partisan result,” Cohen said. “We should all be incredibly concerned about any system that would allow this possibility.”
Robert Barnes contributed to this report.