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Democracy advocates sound alarm after Supreme Court takes up election case

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Suffrage advocates expressed concern on Friday, a day after the US Supreme Court said it would consider a conservative legal theory giving state legislatures virtually unchecked power over federal elections, warning that this could erode the fundamental principles of American democracy.

The idea, known as the “independent legislature theory,” represents to some theorists a literal reading of the Constitution.

But in its greatest scope interpretation, it could exclude governors and state courts from decision-making on election laws while giving state lawmakers have free rein to change the rules to favor their own party. The impact could extend into presidential elections in 2024 and beyond, experts say, making it easier for a legislature to override the will of its state’s citizens.

This immense power would flow to legislative bodies that are themselves undemocratic, many supporters say, because they have been manipulated into creating partisan constituencies, virtually ensure that ruling party candidates cannot be defeated. Republicans control both legislative houses in 30 states and have been at the forefront of promoting the theory.

The Supreme Court’s choice to take up the case came less than a week after the nation’s highest court was overturned Roe v. Wade, leaving state legislatures to decide whether abortion should be legal, and two days after the bombshell testimony before the committee investigating the January 6, 2021 attack on the US Capitol.

The committee presented new evidence suggesting that President Donald Trump sought to disrupt the vote count in Congress to give state legislatures time to send out alternative voter lists. as part of an attempt to overturn the 2020 election results.

State legislatures have already introduced or enacted laws in a number of GOP-controlled states that voting rights groups say make it harder to vote. Experts say that if the Supreme Court adopts the independent legislature theory, it would give state lawmakers ultimate control over election-related decisions like redistricting, as well as issues like voting qualifications and postal voting.

“This is part of a larger strategy to make it harder to vote and impose the will of state legislatures regardless of the will of the people,” said Suzanne Almeida, director of state operations for Common Cause. , a non-partisan pro-democracy group. “This is a significant shift in the power of state courts to rein in state legislatures.”

The case could also open the door for state legislatures to claim ultimate control over voters in presidential elections, said Marc Elias, a veteran Democratic suffrage lawyer.

“If you believe that the strongest form of [the theory] then lawmakers can do whatever they want and there’s no judicial review of that,” Elias said. “From my perspective, the Republicans tried to overturn the 2020 election, but they were clumsy and they are now learning where the pressure points and vulnerabilities are in our electoral systems, and are refining their tactics.”

The case to be taken to the High Court comes from Republicans in North Carolina, who are appealing a state Supreme Court ruling that invalidated the new congressional map of the state as an unconstitutional gerrymander.

Republicans argue that the Elections Clause of the Constitution, which states that “the times, places, and manner for the holding of elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof,” means that only the legislatures have power over election-related activities. Past interpretations have taken the clause to mean the state governments as a whole, including the constituents and the executive, legislative and judicial branches.

“This bogus ‘doctrine’ is an anti-democratic republican power grab disguised as legal theory. It was concocted in a right-wing legal nursery by political operatives seeking to give state legislatures the power to overrule the will of American voters in future elections,” Sen. Sheldon Whitehouse (DR.I.) said in a statement. statement in Washington. Job.

The theory, Whitehouse said, was used by Trump attorney John Eastman as he sought to “cancel the last presidential election, and that could wreak havoc in time for the next one.” The fact that the Court is even considering a case involving such an extreme idea shows how indebted it is to the right-wing donors who secured the jobs of so many judges.

Among the most vocal proponents of the independent state legislature theory is the Honest Elections Project, an alias of the 85 Fund, a conservative nonprofit linked to Leonard Leo, the longtime former leader of the Federalist Society. Fund 85 reported revenue of more than $65 million in 2020, according to a tax return, and its relationship to the Fair Elections Project is clearly shown in company records in Virginia.

The Honest Elections Project argued for the independent state legislature theory in amicus briefs submitted to The Supreme Court during the last years. He cited the theory by name in a January brief in a dispute, also arising in North Carolina, over whether state lawmakers could intervene in a dispute challenging the voter ID law. of State. The High Court ruled 8-1 in favor of lawmakers on June 23, but did not weigh the merits of the voter ID laws or legal theory.

In its amicus brief, the Honest Elections Project noted that the Supreme Court discussed the theory but never clarified “that the doctrine is our law.”

“He should do it here,” the band insisted in their memoir.

The Honest Elections Project made several references to a 2021 Fordham Law Review article explaining the theory. The article’s author, Michael T. Morley, is a professor at Florida State University College of Law and a staff member at the Federalist Society.

An earlier Honest Elections Project brief, in a dispute over the 2020 election between Pennsylvania Republicans and the state’s Democratic Secretary of State, did not cite the theory by name, but argued that the State legislatures have extensive authority over federal elections – unrestricted by state constitutions. .

Lead counsel on the case, David B. Rivkin Jr., an attorney who served in the Ronald Reagan and George H.W. Bush administrations, said the theory, if adopted by the Supreme Court, would not protect the state electoral maps of disputes based on racial discrimination or other claims rooted in the US Constitution or federal law. But that would negate other grounds for rejecting state cards, including allegations of partisan gerrymandering. The Supreme Court in 2019 ruled that federal courts do not have jurisdiction over allegations of partisan gerrymandering, leaving that matter to state courts.

Suffrage advocates point to the ruling, particularly a quote from Chief Justice John G. Roberts Jr., as evidence that the Supreme Court has previously held that state courts have an oversight role.

“The provisions of state statutes and constitutions can provide standards and guidance for state courts to apply” in policing partisan gerrymandering, Roberts wrote for the majority in Rucho c. Common cause.

Rivkin, in an interview, praised his role in refining the theory. He dismissed concerns that it would pave the way for state legislatures to carry out the kind of electoral manipulation sought by Trump and Eastman. Rivkin said he didn’t care about the “dumb arguments used by Trump.”

“If you ask me on a strictly constitutional and analytical level, state legislatures can indeed take back the power to choose voters for themselves,” he said. “I can also tell you pragmatically that I don’t know of any state legislature that has done this.”

Jason Snead, the executive director of the Honest Elections Project — created in 2020 to counter Democratic efforts to expand voting rights — also brushed aside predictions that state legislatures would usurp the power to choose 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.”

“It’s 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 that way. A version of the independent legislature theory was accepted during the Bush versus Gore trial that determined the outcome of the 2000 elections, in which the court ruled with the Republicans. Justices William H. Rehnquist, Antonin Scalia, and Clarence Thomas wrote a concurring opinion that the Supreme Court could overturn a state’s Supreme Court’s interpretation of its election laws to “preserve the power of the legislature of the state.” State on the way in which the State organizes its presidential elections”.

Fifteen years later, the court narrowly dismissed a challenge by the Arizona Republican-led state legislature using the independent legislature theory to oppose an independent redistricting commission drawing maps.

In a 2020 case about mail-in ballot deadlines in Wisconsin, Judge Neil M. Gorsuch appeared to endorse the theory, writing, “The Constitution provides that state legislatures – not federal judges, not state judges , not state governors, not other state officials — bear primary responsibility for setting election rules.

David Cohen, founder and CEO of Forward Majority, a nonprofit aimed at electing Democrats to state legislatures, said the fact that the conservative-leaning Supreme Court is considering the idea makes his group’s work stronger. all the more urgent.

“To me, the scary versions of this are lawmakers throwing out valid American votes in order to get their partisan outcome,” Cohen said. “We should all be extremely worried about any system that would allow this possibility.”

Robert Barnes contributed to this report.