A Supreme Week From Hell, Con't

The good news: the "independent state legislature" theory is dead and buried after a 6-3 SCOTUS decision today authored by Chief Justice Roberts. The bad news is the NC GOP is likely to redraw an even worse, more gerrymandered map that favors the GOP and will cost Democrats two or more House seats in 2024.

 

The Supreme Court on Tuesday declined to impose new limits on state courts reviewing certain election-related issues by ruling against Republicans in North Carolina fighting for a congressional district map that would heavily favor their candidates.

The justices ruled on a 6-3 vote that the North Carolina Supreme Court was acting within its authority in concluding that the map constituted a partisan gerrymander under the state constitution.

In doing so, the court declined to embrace a hitherto obscure legal argument called the “independent state legislature” theory, which Republicans say limits state court authority to strike down certain election laws enacted by state legislatures.

After the then-Democratic-controlled state Supreme Court issued the ruling last year, the court flipped to Republican control following November's mid-term elections and recently overturned the decision, a move that prompted questions about whether the justices even needed to decide the case.

The congressional map in North Carolina will be re-drawn ahead of the 2024 election anyway because of a state law provision that says interim maps can only be used for one election cycle. As a result of the North Carolina Supreme Court’s ruling, that map is likely to tilt heavily toward Republicans.

The independent state legislature argument hinges on language in the Constitution that says election rules “shall be prescribed in each state by the legislature thereof.”

Supporters of the theory, which has never been endorsed by the Supreme Court, say the language supports the notion that, when it comes to federal election rules, legislatures have ultimate power under state law, potentially irrespective of potential constraints imposed by state constitutions.

A Supreme Court ruling that embraced the theory would have affected not only redistricting disputes, but also other election-related rules about issues like mail-in voting and voter access to the polls that legislatures might seek to enact even when state courts have held that those rules violate state constitutions. The theory could also bring into question the power of governors to veto legislation.

Then-Chief Justice William Rehnquist embraced a version of the theory in the Bush v. Gore ruling issued later in 2000, which ultimately led to Republican George W. Bush’s taking office as president. During December's oral argument, several justices cited Rehnquist’s opinion, which did not secure a majority at the time, in support of the notion that there should be some constraints on the scope of state officials, including judges, to make changes to election laws enacted by legislatures that are not anchored in law.

The independent state legislature theory has subsequently been cited by supporters of former President Donald Trump in various cases during the 2020 presidential election and its aftermath.

The North Carolina case was being closely watched for its potential impact on the 2024 presidential election.

 

Roberts stepping in himself here to put an end to this nonsense is definitely one of those "I'm not going to go down as the villain in history!" kind of efforts, even though it's largely too late for that. Still, with both the NC state legislature and state Supreme Court firmly in the hands of the GOP, expect the 7-7 party split in the US House to become 10-4 or even 11-3 GOP in 2024. Your state's gerrymander will depend on whom you elect to run your state.

The real issue though is that Roberts does leave the door open for federal review of state Supreme Court rulings on gerrymanders in "extraordinary" cases. That could be very important down the line and it's going to be tested sooner rather than later. We're not out of the woods yet.

 

Also, the Chief Justice rules that states are bound by their constitutions as far as electors go, so the Trumpian theory of "alternate slates of electors" also gets tossed into the trash can.

Oh, and Clarence Thomas's dissent is just two dozen pages of whinging. Fuck him.