In practice, the results of the cases could open the door to more manipulation by lawmakers across the country, and could also give legislatures even more power within their states to determine the rules for voting, including how, when and where voters can cast their ballots. .
“In truth, it’s not even a gerrymandering case or a voting rights case,” said Allison Riggs, co-executive director of the Southern Coalition for Social Justice, who is one of the attorneys in the case. “It’s about checks and balances and federalism.”
In both cases, Republican litigants are seeking to reverse orders from lower courts — a federal court in Alabama and the state Supreme Court in North Carolina — that threw out political maps drawn by GOP-controlled legislatures.
“Everyone is going to be waiting to see where the court is going, and then they are going to have to re-evaluate the maps that they enacted, legislative and congressional, to see if they deliver,” said Adam Kincaid, executive director of the Republican National Redistricting Trust. Districts.
A ruling that accepts a strong version of the independent state legislature theory could reopen maps that the courts drew this election cycle, like Pennsylvania or New York, and could, in theory, even call into question the legitimacy of independent redistricting commissions. .
Such a decision would have blocked many of the court-ordered changes to election rules during the pandemic, and a particularly strong endorsement of the theory could also throw election administration into chaos, because many election-related policies are not specifically listed in the election. state law and are effectively delegated to local officials.
Beyond the immediate impact on congressional lines across the country, the rulings could continue the Supreme Court’s decades-long march to restrict the ability to challenge election laws in court, civil rights groups and election experts warn. that is disenfranchising minority voters.
“This term has the potential to be a blockbuster term in terms of election law,” said Rick Hasen, a well-known election law expert at UCLA School of Law. “But it really depends on how far the court is willing to go.”
Removing the Voting Rights Act
In the Alabama case, the plaintiffs argued that the state’s congressional maps violated Section 2 of the Voting Rights Act, which prohibits voting procedures that discriminate on the basis of race, by diluting the power of black voters. The state is more than a quarter black, but only one of its seven districts is majority-minority. Community groups argued that a second black district should be drawn, and a lower court agreed.
“This is not just about black people in Alabama. This is about African Americans, especially African Americans from the South,” said Shalela Dowdy, who is a party in the case and president of Stand Up Mobile. “But this is about black Americans and whether or not their vote and voice will be influential, impactful and heard.”
But the Supreme Court has stayed the lower court order that blocked the Alabama map, and will now likely review a decades-old ruling that established criteria for testing whether a political map illegally diluted the power of a racial group.
Chief Justice John Roberts dissented from the initial decision to stay the lower court’s order, but nevertheless wrote that the original Supreme Court case “and its offspring have generated considerable disagreement and uncertainty regarding the nature and contours of a vote dilution claim.”
In its court filings, Alabama argued that lower courts got it wrong, saying the state had a “race-neutral” reason for drawing its current map: “The fact that you can draw a majority-majority district minority does not mean that it should be drawn”. .”
That interpretation, Hasen said, would “turn the Voting Rights Act on its head” if the Supreme Court upheld it. “It is emphatically a race-conscious statute. And it would be, through legal interpretation, a way to take the life out of such a provision,” he added.
It could be the latest blow the Supreme Court deals to the Voting Rights Act, the landmark 1965 law that ushered in greater political representation for African Americans and other people of color in the decades after it was passed.
Over the past decade, the Roberts Supreme Court has significantly limited the power of the law in a series of rulings. First – Shelby County v. Headline — effectively ended the practice of “prior clearance,” in which states and other jurisdictions with a history of discriminatory voting practices had to obtain changes to election rules, including redistricting lines, with the approval from the Department of Justice or a federal court.
More recently, civil rights groups argued that the Supreme Court ruling in Bronovich v. Democratic National Committee last year made it much harder to challenge laws that can disadvantage minority voters.
the Moore vs. Harper The North Carolina case could go even further, but the outcome is uncertain, adding tension to the high stakes surrounding the “Independent State Legislature” theory.
Two conservative justices remain a complete mystery: Chief Justice John Roberts and Justice Amy Coney Barrett. Court observers have already raised the possibility that there may not be a five-vote majority for a particular interpretation, with different proponents of the theory presenting many different interpretations. There are also important questions about how the court will deal with recent decisions that blessed independent redistricting commissions and delegated to state courts the role of policing partisan manipulation.
Riggs said he was “optimistic” about the case, which does not yet have oral arguments scheduled, given disagreements on theory among proponents.
“Legally speaking, I think this really is one of the cases where the brief and the arguments, up to the point where the court decided to take the case, weren’t fully developed, and I wouldn’t be surprised if this is one that they end up regretting. having taken,” he said.
The case also drew attention weird friend of the court briefing of the Conference of Chief Justices, a task force of senior state judges. Weather his brief was not nominally in support of either party, sought to reject the independent state legislature theory, arguing that the US Constitution “does not displace state constitutional rules” governing elections.
Republicans have also dismissed warnings from civil rights groups, election law experts and Democratic lawyers about Moore as histrionics.
“This case, in my mind, and in the minds of most of the attorneys I’ve spoken to, is not a threat to democracy,” Kincaid said. “If anything, it should give Americans more confidence in their elections next year, if we have a set of rules in place, on how these processes can and cannot be changed.”
Some Republican lawyers, notably John Eastman, who was behind then-President Donald Trump’s failed strategy to try to introduce fake electors, have tried to argue that the same principles in this case should apply to the Electors Clause of the Constitution, That could give state lawmakers even more power to choose the president. But even some conservative lawyers have rejected Eastman’s interpretation, and there is significant disagreement among electoral law scholars about the threat posed here by the independent legislature theory.
But taken together, some have cast the two cases as an existential challenge to the US electoral system, with particularly strong results in both cases undermining the checks and balances in the system.
“You can’t look at these cases objectively without acknowledging the fact that, taken together, they could determine whether or not America remains the democracy we’ve come to love,” former Attorney General Eric Holder, who heads National Democratic Redistricting . Committee, told reporters. “I think unfortunately we take for granted a democracy that delivers on the promise of one person, one vote.”