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| The Supreme Court is set to hear a case in December that could give state legislatures a much bigger role in federal elections. |
Judges are set to hear debates about legal theories that could change federal elections next month, leading to countless lawsuits, experts say.
As the Supreme Court prepares to hear a lawsuit next month that could fundamentally change the way federal elections are conducted, it's time for a Friends of the Court series featuring enough odd pals to fill a hotel. I have received many briefs.
In it, many prominent conservatives joined the liberals, arguing that the text and history of the Constitution, along with the principles of federalism, contradicted what has come to be called the "independent legislatures" doctrine. Did. federal election rules.
Judges, however, may pay special attention to some briefs that made more practical arguments. According to these briefs, accepting this theory would lead federal courts, especially the Supreme Court, to will be flooded with lawsuits over voting disputes.
Chief Justice John G. Roberts Jr. says the Supreme Court must be careful about getting caught up in election disputes over new theories, making it seem like the court is partisan, threatening its legitimacy said it was possible.
In a 2017 discussion about the consequences of adopting one method of measuring partisan gerrymandering, he said, "The smart people on the street would say that's ridiculous." "It must have been because the Supreme Court favored Democrats over Republicans. In the eyes of the court, it would do very serious harm to the standing and integrity of this court's decision."
The theory of the new lawsuit, Moore v. Harper, No. 21-1271, gives the legislatures independent powers not subject to review by state courts, allowing them to set any kind of electoral rule contrary to the state constitution. increase. The map of Congress is distorted by partisan gerrymandering.
The lawsuit, scheduled to be debated on Dec. 7, concerns a voting map drawn up by the North Carolina legislature and was dismissed by the state's Supreme Court as partisan gerrymandering. Republicans seeking to restore the legislative map argued that state courts had no power to act.
This theory is based on an interpretation of the constitutional election clause. The article states that "the time, place, and manner in which elections for Senators and Representatives shall be held shall be prescribed by the legislative branch of each state."
If the Supreme Court recognizes that the legislative branch is the only agency of state government that matters in elections, attorneys at the Brennan Center for Judiciary will scrutinize the myriad provisions of the state constitution, decisions of state courts, and state election administrators. the policy will be questioned.
"The laws and practices it jeopardizes range from the right to secret voting in many state constitutions, from independent re-election commissions in Arizona and California, from ranked-choice ballots in Alaska and Maine to Michigan and Nevada. From state automated voter registration, detailed rules for maintaining voter lists in Indiana and Iowa, to automated voting machine testing procedures in Montana and Ohio.”
If the Supreme Court upholds its theory, the question of whether these laws and practices are viable will need to be answered by a federal judge.
"Only two actors, the state legislatures and the federal courts, will remain with unequivocal powers of law," the Center's brief said, adding, "This new broader federal role in overseeing elections will provide a broader public perspective on election legitimacy." There will be a heavy price to pay for the recognition of Both courts and election results. ”
In a separate abstract, veteran Republican election attorney Benjamin L. Ginsburg warned that accepting the independent legislature's theory would "exponentially increase the volume of litigation." He added: But it's bad for everyone else. ”
Richard L. Heysen, an election law expert at the University of California, Los Angeles, wrote in a separate abstract that judges should be mindful of both the volume of litigation a theory brings and the speed of litigation.
“U.S. election litigation has already reached record highs, with a nearly 26% increase in the 2020 election period compared to the 2016 election period, and a record high in the period since the contested 2000 election. has almost tripled,” writes Professor Hasen. He added: -Relevant motions are on the emergency docket. ”
Emergency dockets, which critics call shadow dockets, typically deliver brief judgments with little or no reasoning based on hastily written statements or oral arguments. No one expects the courts to do their best in such situations. If the Supreme Court adopted the doctrine of independent state courts, Professor Hasen writes:
Just three years ago, in Rucho v. Common Cause, Chief Justice Roberts, writing on behalf of the Supreme Court's conservative majority, argued that federal courts should not be held accountable when adjudicating a challenge to partisan gerrymandering. I said no role. He added that complaints about partisan gerrymandering can be addressed in state courts.
"Our conclusions do not condone excessive partisan gerrymandering," he wrote. “Nor do our conclusions condemn complaints about electoral divisions echoing in vain. States, for example, are actively addressing the issue on several fronts.”
Seemingly anticipating and rejecting the theory of independent state legislatures, he wrote that "state law and state constitutional provisions can provide the standards and guidelines to which state courts apply."