The spotlight on Wednesday’s oral argument was focused on three of the six conservative High Court judges: Chief Justice John Roberts and Associate Justices Amy Coney Barrett and Brett Kavanaugh.
These three judges will likely serve as the deciding factor in any decision. The three liberals on the court were overwhelmingly hostile to the theory during oral arguments, while the other three conservatives showed sympathy for a heavy-handed version of the theory, both in earlier writings and during oral arguments in court on Wednesday.
That left Roberts, Barrett and Kavanaugh as judges who would likely be the backbone of any mainstream opinion outside the court. As in some other recent arguments, they seemed eager to overturn perceptions that they were on a mission to advance doctrinaire legal interpretations that could upend decades, if not centuries, of common practice in US elections.
Roberts’ questioning of David Thompson, who represented Republican lawmakers, showed hostility to the independent state legislature theory.
“Giving veto power to the actions of the legislature significantly undermines the argument that it can do whatever it wants,” Roberts said, quoting a 1930s Supreme Court case which concluded that the U.S. Constitution did not prohibit governors from vetoing a congressional map passed by the legislatures.
Kavanaugh and Barrett’s questions to Thompson were less revealing than those of Roberts. But Kavanaugh apparently suggested that the version of the independent state legislature theory put forward by North Carolina lawmakers went too far. He noted that North Carolina was trying to go further than then-Chief Justice William Rehnquist’s agreement in the 2000 case. Bush versus Gore, which is the origin of the theory that the state courts have overstepped their role and that they could be surrounded somehow.
Kavanaugh also raised a brief from the Conference of Chief Justices, a collection of state chief jurists, asking how to reconcile their writings on the history of state courts applying state constitutions in federal elections, with the theory of the independent state legislature. Barrett, meanwhile, also seemed skeptical at times of Thompson’s argument, noting that state constitutions could be changed.
But later Roberts’ questioning of Neal Katyal, who represented groups who challenged the initial maps drawn by the law, showed how some of the court’s conservative justices could still rule in favor of GOP lawmakers without adopting the most robust interpretation of the independent. state legislature theory. Roberts seemed to potentially be looking for a way to constrain state courts one way or another, particularly on what might be decisions based on broad constitutional provisions.
“Do you think the phrase ‘free and fair elections’ provides standards and guidelines?” he asked Katyal, who answered in the affirmative.
Roberts also expressed discomfort with the North Carolina Supreme Court’s finding that she could use this loosely worded commitment to adopt a precise mathematical formula known as the “efficiency gap” to limit gerrymandering.
And both Kavanaugh and Barrett asked Katyal about the Rehnquist deal – with Katyal arguing that the federal judiciary should only step in to challenge a state court ruling on its own constitution if the decision reached an “exorbitant” level. of ignorance of established legal principles. .
The court’s liberal justices raked Thompson over the coals. At one point, Judge Sonia Sotomayor accused GOP lawmakers of trying to “rewrite history” of early state constitutions in an effort to bolster their views. She also bluntly told Thompson that one of his arguments “makes no sense to me.”
Justice Elena Kagan pointed out that the impacts of freeing state legislatures from the restrictions placed on them by state constitutions would be far-reaching. “It’s a theory with big consequences,” she said.
Justice Ketanji Brown Jackson argued that the US Constitution’s reference to elections administered by state legislatures only made sense in light of the decisions made by those states to create legislative bodies and delineate their authority, usually in a state constitution.
“What I don’t understand is how you can take the state constitution out of the equation when it gives the state legislature the power to exercise legislative power,” Jackson said. .
Meanwhile, the court’s more conservative triumvirate – Justices Samuel Alito, Neil Gorsuch and Clarence Thomas – seemed overall more likely to endorse a more robust reading of the independent state legislature theory. But even among those conservatives, there was some ambivalence in the arguments made by Republican lawmakers, who advocated a reading of the theory that would remove nearly all state court jurisdiction over congressional elections. Beyond that, Thompson faced the broader challenge of winning over two of the other three Tories, who didn’t seem to accept the broader interpretation.
“There has been a lot of talk about the impact of this decision on democracy. Do you think it promotes democracy to transfer political controversy over the constituency of the legislature to the elected supreme courts where candidates are permitted by state law to campaign? Alito asked at one point.
Wednesday’s oral arguments will have ramifications far beyond the lines of Congress in North Carolina, which have been redrawn many times over the past decade.
A robust adoption of the independent state legislature theory by the court could grant state legislatures far more power in setting the rules of the road for elections. A maximalist version of the theory would prevent state courts from weighing in on disputes over everything from voter identities to last-minute polling place adjustments, and could even jeopardize voter-passed referendums creating disputes. independent redistricting commissions that take over the traditional legislative powers. Some would even go so far as to use the federal Constitution to deprive state governors of their usual role. Getting the Supreme Court to remove the governors would require overturning the 90-year-old high court precedent cited by Roberts, which may be why Thompson stopped arguing for such an outcome on Wednesday.
Significant questions remain about how, if at all, Wednesday’s case could affect the rules surrounding the selection of presidential voters. Some of the theory’s most outspoken proponents have raised links to presidential elections in memoirs, but many legal experts — including those who oppose the independent state legislature theory — don’t think that this affair will have many ramifications on the presidential elections.
Presidential voters were not explicitly mentioned during Wednesday’s closing arguments, although Kagan briefly referred to the idea that the theory reinforced the idea that legislatures unhappy with the outcome of an election could step in and declare the result. — what then-President Donald Trump’s supporters were urging state legislatures to do in 2020 as Trump used unsubstantiated fraud allegations to try to fight Joe Biden’s victory.
“It could allow legislatures to step in, give themselves a role in certifying elections and how election results are calculated,” Kagan warned.
Representing the Biden administration, Solicitor General Elizabeth Prelogar also urged the justices to allow continued enforcement of the state’s constitutional provisions. She echoed Kagan on the dangers of reversing longstanding policies.
“It would wreak havoc on the pitch,” Prelogar said.
The Moore the case is the second important case in electoral law the Supreme Court has heard this term. In early October, the Supreme Court heard arguments in another redistricting case, in which Alabama argued for a “racially neutral” reading of the federal Voting Rights Act, the landmark rights law civilians which has led to greater representation of minorities in politics. The court seemed unlikely to adopt this interpretation, but seemed likely to rework the legal criterion used to determine whether minority communities’ voting power is diluted, likely making it more difficult to challenge. Decisions in both cases are expected by the end of June.