Saturday, March 5, 2022

Republicans Want Courts Out of Election Cases

             When the Supreme Court closed federal courthouse doors to partisan gerrymandering cases three years ago, Chief Justice Roberts stressed in Rucho v. Common Cause (2019) that states still had the authority to devise remedies for politically motivated districting plans. Now, however, Republicans in two states, North Carolina and Pennsylvania, are asking the Court to go back on its word by vesting state legislatures with unreviewable authority to enact election laws and procedures immune from judicial review based on a preposterous interpretation of the Constitution’s Elections Clause.

            Republicans in those two states filed emergency applications before the Supreme Court in late February asking the justices to block redistricting plans ordered by state courts that are somewhat more favorable to Democrats than the gerrymandered plans enacted by GOP-controlled legislatures. The emergency applications – Toth v. Campbell, 21A457, in the Pennsylvania case, and Moore v. Harper, 21A455, in the North Carolina case – do not focus on the specifics of the court-ordered redistricting plans, but instead contend that courts have no authority whatsoever to override legislative enactments regarding voting and election procedures.

            The Republicans have fashioned an argument all but unprecedented in two centuries of election-related litigation in the United States. They cite the Constitution’s Elections Clause [Art. I, sec. 1, cl. 4] as giving state legislatures all but exclusive authority over congressional elections. The clause reserves for Congress the right to alter state election laws, but as written in 1789 makes no mention of judicial review.

            The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing [sic] Senators.

            Arizona’s state legislature unsuccessfully argued this interpretation of the clause seven years ago in a legal challenge to a voter-approved initiative creating an independent commission to draw congressional and legislative districts. The Court’s 5-4 decision in Arizona State Legislature v. Arizona Independent Redistricting Commission (2015) emphatically rejected the Arizona lawmakers’ argument.

            “The Elections Clause permits the people of Arizona to provide for redistricting by independent commission,” Justice Ruth Bader Ginsburg wrote for the majority. In creating the initiative process, Ginsburg emphasized, the state had determined that legislative authority could be shared with the people. “There is no suggestion,” Ginsburg wrote, “that the Elections Clause, by specifying ‘the Legislature thereof,’ required assignment of congressional redistricting authority to the State’s representative body.”

            In complete disregard of this holding, conservative legal advocates and Republican politicians have fashioned what is now being called the “independent state legislature doctrine,” based on a “deceptively simple” reading of the clause. The argument contradicts not only this Supreme Court precedent, but it also would reduce three constitutional amendments to nullities: the Fifteenth Amendment, the Nineteenth Amendment, and the Twenty-Sixth Amendment, which respectively prohibit states from abridging the right to vote on the basis of race, on the basis of sex, or on the basis of young age.

            Several election law experts have similarly pointed to the astounding implications of the Republicans’ arguments in these two cases. Rick Hasen, the nationally recognized election law expert at the University of California-Irvine School of Law, correctly noted to CNN’s Ariane de Vogue that the argument “could upend any rules that state courts … put in place that affect federal elections, such as striking down voter ID laws under state constitutions.”

            Writing about the Pennsylvania case on Twitter, Steven Vladeck, a professor at the University of Texas School of Law, also underscored the unsettling implications of what he called the “deeply problematic” argument. “It’s hard to underscore,” Vladeck wrote, “just how big a deal it would be if #SCOTUS granted this application (or the similar one from North Carolina), and used a summary shadow docket ruling to enshrine, formally or practically, the deeply problematic ‘independent state legislature’ doctrine.”

            Scott Lemieux, a political scientist at the University of Washington, also used a tweet to underscore the implication that this newly fashioned doctrine would leave no remedy whatsoever against partisan gerrymandering. “A ruling that state courts (and, hence, state constitutions) cannot interfere with parties gerrymandering themselves into permanent unaccountable power would be an extraordinary 1-2 punch to American democracy,” Lemieux wrote.

            The North Carolina and Pennsylvania applications have been pending on the Court’s shadow docket now for more than a week. The state officials named as respondents have filed comprehensive responses emphatically rejecting the argument for precluding state courts from overriding state legislatures in redistricting or other election-related cases.

            In the response in the Pennsylvania case, attorney Joshua Matz aptly called the Republicans’ argument “completely meritless.” Matz reminded the justices of the sixty-year history of state courts’ involvement in redistricting cases. “To start,” Matz wrote, “this Court has repeatedly and explicitly upheld the propriety of state courts drawing congressional districts when the legislative process fails to produce one. This theme emerged in many decisions issued during the 1960s, as legislatures and courts aimed to implement new constitutional requirements.”

            Lawyers representing the Tarheel state similarly rejected the Republicans’ argument as unsupported. “The Elections Clause does not negate state court judicial review of congressional districting plans under state constitutions,” they wrote. The lawyers noted further that the Republicans’ argument contradicted what they called “a half century of precedents.”

            Indeed, the Supreme Court was emphatic nearly a century ago in rejecting Texas laws limiting participation in Democratic party primaries to white voters. The unanimous ruling in Nixon v. Herndon (1927) struck down a Texas law enacted four years earlier that prohibited Negroes from voting in Democratic party primaries. The Court reinforced that decision two decades later after the state’s Democratic Party adopted a similar “white primary” rule. The 8-1 decision in Smith v. Allwright (1944) struck down a state law authorizing political parties to set their own rules, including white primaries. Neither of those decisions suggested that the Texas legislature’s enactments were immune from judicial review.

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