The contested 2000 election still looms large over U.S. politics, and two Supreme Court cases could give Republican legislators in battleground states even more control over voting procedures -- and more influence over who becomes president.
GOP legislators in North Carolina and Pennsylvania challenged court-ordered redistricting plans under the "independent legislature" legal theory that stems from the Florida recount in the election between George W. Bush and Al Gore, which holds that state lawmakers have ultimate power over elections in their states and that state courts have almost no authority to rein them in, reported Politico.
“Some provisions of the Constitution are subject to reasonable debate. Others are not,” reads a friend of the court brief filed by the Republican National Committee, the National Republican Congressional Committee and the North Carolina Republican Party backing an ultimately unsuccessful emergency order sought by GOP legislators.
“Absent from the constitutionally mandated order of authority is any role for the state judiciary,” the briefing adds. “Notwithstanding this omission, certain state and commonwealth courts have taken it upon themselves to appropriate the processes that belong to the politically accountable branches of government.”
The U.S. Supreme Court rejected one GOP redistricting challenge on Monday, largely on procedural grounds, but four justices expressed some support for the "independent legislature" theory, which some of its proponents believe would give legislatures the authority to override voters and decide who to send as presidential electors.
“There’s a lot of potential for nuance here,” said Rick Hasen, an election law expert at the University of California, Irvine, who does not support the theory. “Even if you had a majority of justices that agreed that there’s something to this theory, they might not agree that a particular state has violated it.”
“[If they took] the most maximalist position," he added, "it would be an earthquake in American electoral power.”
The court decided not to overturn the redistricting maps for other reasons, so the theory hasn't been fully tested yet, but four conservative justices -- Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Clarence Thomas -- signaled an openness to giving legislatures that sweeping power.
“This Clause could have said that these rules are to be prescribed ‘by each State,’ which would have left it up to each State to decide which branch, component, or officer of the state government should exercise that power, as States are generally free to allocate state power as they choose,” Alito wrote in his dissent Monday. “But that is not what the Elections Clause says. Its language specifies a particular organ of a state government, and we must take that language seriously.”
“If the language of the Elections Clause is taken seriously, there must be some limit on the authority of state courts to countermand actions taken by state legislatures when they are prescribing rules for the conduct of federal elections,” Alito added.
Gorsuch and Thomas joined the dissent, but Kavanaugh did not strongly endorse the dissent but agreed the court should have a full hearing of the theory "in an appropriate case," and Republican attorneys are working to find one to test their theory -- which some legal experts argue would fly in the face of conservative judicial doctrine.
“How the court’s conservatives will reconcile the new originalist scholarship with their theories of judicial interpretation is going to be really tricky,” said Cameron Kistler, an attorney at the group Protect Democracy, “and I think they’re going to struggle with it.”
