WASHINGTON – The Supreme Court wrestled Wednesday with a controversial legal theory that critics warn could upend federal elections but that proponents insist is needed to limit the power of state courts to overrule voting laws approved by state lawmakers.
Over the course of three hours at least three justices signaled a willingness to embrace the idea that state courts should be curtailed in their power to strike down state laws governing federal elections. But three other members of the conservative majority – including Chief Justice John Roberts – seemed to be searching for a far less sweeping resolution.
The closely watched litigation arrived at the nation’s highest court at a time when polls indicate some Americans have lost faith in elections, despite no evidence of widespread voter fraud or even major glitches that have cast doubt on outcomes. The arguments came a day after voters in Georgia decided a bitter Senate runoff, a holdover from the November midterm election that decided control of Congress.
At the center of the case is North Carolina’s congressional map, which the state’s supreme court rejected earlier this year as a partisan gerrymander it said violated the state constitution. Republican lawmakers appealed to the U.S. Supreme Court, asserting that state courts didn’t have the power to strike down or redraw the map.
That so-called independent state legislature doctrine is based on the Constitution’s election clause, which gives legislatures the power to make laws governing congressional elections but is silent on state courts. Congress would still have oversight as would federal courts, albeit in a shrinking number of circumstances.
Roberts noted that North Carolina’s GOP lawmakers aren’t arguing that governors shouldn’t be able to veto state laws on federal elections. Given that the Constitution is also silent about governors, he asked, why wouldn’t vetoes be out, too? “The governor’s not part of the legislature. Why do you concede that point?” Roberts asked the attorney for the lawmakers. “Vesting the power to veto the actions of the legislature significantly undermines the argument that (the legislature) can do whatever it wants.”
That’s a point those opposed to the theory have made throughout the course of the case. David Thompson, representing the lawmakers, said there was a difference between procedural oversight, like a veto, and substantive oversight. That answer drew a round of questioning from other justices about how to tell the difference.
Among the court’s conservatives, Associate Justices Brett Kavanaugh and Amy Coney Barrett also asked tough questions of both sides.
Voting rights groups say the lawmakers’ narrow reading of the elections clause – never before embraced by a majority of the Supreme Court – could have troubling consequences, allowing legislatures controlled by one party to set election rules without judicial oversight. Even some right-leaning experts said the doctrine could sow “chaos.”
The court’s liberal bloc, Associate Justices Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson, all voiced deep skepticism about the state lawmakers’ legal theory.
“This is a theory with big consequences,” Kagan said. “This is a proposal that gets rid of the normal checks and balances on the way big governmental decisions are made in this country and you might think that it gets rid of all those checks and balances at exactly the time that they are needed most.”
Thompson responded by noting that the Constitution allows Congress to step in to change the rules of federal elections. And courts, he said, could still review state election regulations that parties feel violate federal laws, such as the Voting Rights Act.
“There is a check,” Thompson said. “There is a balance.”
But critics of the theory note the Supreme Court, in a series of recent decisions, has been weakening the reach of the Voting Rights Act. Last year the court curbed the landmark 1965 law by upholding an Arizona law limiting how voters may return absentee ballots.
The background of the North Carolina redistricting case highlights the problem for voting rights groups. In 2019, a divided Supreme Court ruled voters could no longer challenge partisan election maps in federal court. But, Roberts wrote for the majority at the time, such lawsuits might still be filed in state courts based on state constitutions.
If the court embraces the broad theory pushed by the North Carolina GOP lawmakers in the present case, it would close that door for those challenging maps – regardless of which party drew them.
State and federal courts stepped in repeatedly during the 2020 election. At a time when the U.S. Postal Service was experiencing delays, a Pennsylvania court ruled absentee ballots could be counted even if they arrived three days after the election. The U.S. Supreme Court declined to halt the ruling. Several courts considered challenges to redrawn congressional districts in the months leading up to the November midterm.
A ruling in the case, Moore v. Harper, could limit the ability of voters, political parties and outside groups to sue over polling hours, voter ID requirements and congressional districts, for instance.
For conservatives who embrace the doctrine, that’s not necessarily a problem. They argue that many state courts overstepped their authority in the 2020 election, changing the rules without authorization from lawmakers. Besides, they say, a plain reading of the Constitution’s election clause suggests the framers wanted legislatures in control.
Conservatives add that the supreme court in North Carolina struck down the map based on a vague provision of the state’s constitution that provides elections must be “free.” That was a concern Roberts raised during arguments Wednesday, suggesting a middle path that would give a win to the GOP lawmakers on a narrow ground with more limited implications.
“If they had a more precise articulation of what the limits were that they were going to apply…something more substantive. Is the problem that they’re just interpreting something that gives them free rein?” Roberts asked.
Thompson said the lack of clarity in the state’s constitution was one problem.
At least four conservative justices had already signaled varying levels of interest in the doctrine before the arguments Wednesday. Associate Justices Clarence Thomas, Samuel Alito and Neil Gorsuch seemed to be open to embracing the lawmakers’ broader theory.
“There’s been a lot of talk about the impact of this decision on democracy,” Alito pressed the attorney representing some of the respondents in the case. “Do you think that it furthers democracy to transfer the political controversy about districting from the legislature to elected supreme courts?”
The attorney, Neal Katyal, responded that he did think so, noting that there are other checks on the courts’ power built into the system.
Kavanaugh, often viewed as the court’s ideological center, said earlier this year that both sides had “advanced serious arguments” in the case. The questions they raised, Kavanaugh wrote in March, are “almost certain to keep arising until the court definitively resolves it.”
A decision is expected by June.