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In an extraordinary and tense debate stretching three hours on Wednesday, the U.S. Supreme Court entertained an unprecedented call to give state legislatures nearly unchecked power to dictate when, where and how Americans vote for president and Congress.
While a majority of justices appeared skeptical of entirely removing state courts from the process of reviewing state election laws, a majority did seem willing to impose new limits on the role judges can play in election policy. There was no clear consensus on scope or approach.
North Carolina Republicans were asking the high court to reinstate a gerrymandered election map drawn by the GOP-controlled state legislature after it was thrown out by the state supreme court for violating the state constitution. A court-appointed panel drew a new map which was used during the 2022 midterm election.
The plaintiffs argue that the U.S. Constitution’s elections clause expressly empowers the state legislature, and legislature alone, to dictate the “time, places and manner” of federal elections — free from substantive review by state courts. The view is based on a fringe theory known as the independent state legislature theory, which the court has never adopted.
“States lack the authority to restrict the legislatures’ substantive discretion when performing this federal function,” argued attorney David Thompson, representing the Republicans.
A group of North Carolina voters and pro-democracy advocates, backed by the Biden administration, opposes the move as contrary to the nation’s history and tradition and has warned that it would invalidate hundreds of election laws in every state.
“The blast radius from their theory would sow elections chaos,” said attorney Neal Katyal, the former Obama administration solicitor general representing the voters. “For 233 years, “This court has never second-guessed a state court interpretation of its own constitution in any context.”
Of the supposed historical underpinning of the theory, Katyal said: “The dog never barked … Not a person said anything like that they were trying to create this strange animal.”
On the left and the right, the justices echoed skepticism of the theory.
