Though the US Supreme Court appears reluctant to free North Carolina Republican lawmakers from judicial scrutiny as much as they want on voting rules, the restrictions it may allow still could give politicians more power over the way federal elections are conducted at a delicate time for American democracy.
Hearing arguments on Wednesday in a fight over a map laying out the state’s 14 US House of Representatives districts, some of the conservative justices balked at the broadest arguments by these lawmakers arising from a contentious legal theory that would remove any role of state courts and state constitutions in regulating presidential and congressional elections.
The court has a 6-3 conservative majority. Some combination of the six conservatives can be expected to determine the outcome, considering the opposition by the three liberal justices to the “independent state legislature” doctrine.
Three of the conservatives - Chief Justice John Roberts and Justices Brett Kavanaugh and Amy Coney Barrett - are likely to be pivotal. They seemed to focus on a narrower option than the Republican lawmakers sought - curbing state court authority to overrule voting policies crafted by state politicians in instances in which judges act more like legislators.
“It would be fair to say, whether a broad or narrow ruling, it’s a win for North Carolina lawmakers,” said Jason Snead, a conservative elections expert.
This type of “middle ground” ruling, as some court watchers have called it, would still place the lawmakers in the “driver’s seat” when it comes to regulating federal elections, said Snead, who heads the Honest Elections Project, a group that sometimes opposes bids for more expansive voting rules favored by liberal organizations and Democrats.
“You would end up in a better position as a legislature in terms of having your authority to write election laws affirmed,” Snead said.
This outcome would not be as onerous as completely cutting state courts out of the elections process, according to Richard Hasen, a UCLA School of Law election law expert.
But it is still a “bad alternative,” Hasen said, because it would let the Supreme Court second-guess state court rulings protecting the rights of voters - even in highly charged elections cases including presidential races.
“State legislators would get another bite at the apple,” Hasen said.
The case has come to the Supreme Court at a time of sharp divisions over voting rights and American political polarization, particularly in the aftermath of Republican former President Donald Trump’s false claims that the 2020 election was stolen from him through widespread voting fraud.
Democrats have accused Republican state legislatures of undercutting the rights of voters by imposing new restrictions in the aftermath of Trump’s claims, while Republicans assert that they are simply guarding against fraud.
State courts in North Carolina threw out a congressional map drawn by the Republican legislators as unlawfully biased against Democratic voters and replaced it with one drawn by a bipartisan group of experts. In their appeal to the Supreme Court, the Republicans argued that North Carolina’s top court usurped their authority by throwing out the map.
Proponents of the doctrine contend that the US Constitution gives state legislatures authority over election rules and electoral district maps, cutting out any role for entities like state courts. That view is based on the Constitution’s statement that the “times, places and manner” of federal elections “shall be prescribed in each state by the legislature thereof.”—Reuters