SCOTUS Rejects Republican Effort to Hijack Elections

In a ruling that dashed some Republican dreams of state legislatures - Republican controlled, of course - overturning election results and erasing the will of voters, today's ruling in Moore v. Harper by the U.S. Supreme Court rejected North Carolina Republicans effort to end democracy and place acts of the legislature above judicial review and federal laws governing federal elections.  Not surprisingly, Justices Thomas, Alito - joined by Gorsuch - who want a right wing Catholic theocracy and who have shown their scorn for the majority of Americans dissented from the majority opinion.    Had SCOTUS ruled in favor of the anti-democracy Republicans, there would have been no means for courts to overturn efforts to gerrymander districts so as to minimize minority and even perhaps urban voting strength.  One will never know the motivations of the so-called "conservatives" who ruled with the 6-3 majority, although some commentators have suggested that Thomas' and Alito's corruption scandals and the continuing blowback from last year's Dobbs ruling may have convinced them to try to minimize the Court's collapsing legitimacy in the eyes of a majority of Americans,  Whatever the motivation, the ruling undercut Republican efforts to empower their shrinking white voter base. A piece at Mother Jones looks at the welcomed ruling.  Here are highlights:

In a hugely significant opinion on Tuesday, the Supreme Court rejected the “independent state legislature” theory pushed by Republicans that would have given state legislatures virtually unchecked power to draw new redistricting maps and pass restrictive voting laws with little to no review by state courts or other entities. “The Elections Clause does not vest exclusive and independent authority in state legislatures to set the rules regarding federal elections,” Chief Justice John Roberts wrote in the 6-3 opinion in Moore v. Harper.

The case had huge national implications. Voting rights experts said the Republican position would eviscerate checks and balances in state government, giving state legislatures enormous power to rig state and national politics, and could have even emboldened them to attempt to overturn future election results, like Trump wanted them to do in 2020 but now with the veneer of legality. 

The decision could have immediate ramifications in key battleground states like Wisconsin, where a new liberal majority on the state Supreme Court could strike down the state’s gerrymandered congressional map under the Wisconsin Constitution once a new justice is seated in August.

The Moore case was filed by Republicans in North Carolina, who argued that “the power to regulate federal elections lies with state legislatures exclusively.” They were backed up by the powerful dark money network of Federalist Society co-chairman Leonard Leo, who founded a group, the Honest Elections Project, that doggedly advocated for the “independent state legislature” (ISL) theory in briefs and other forms of advocacy before the courts. Thanks to these efforts, a position that was once considered fringe and extreme even in Republican circles was put squarely before the Supreme Court. Key figures involved in Donald Trump’s attempt to overturn the 2020 election amplified these claims, such as Trump lawyer John Eastman, who aggressively made the case that state legislatures could not be constrained by state constitutions or other actors during and after the 2020 election.

“This is a theory with big consequences,” Justice Elena Kagan said during oral arguments. “It would say that if a legislature engages in the most extreme forms of gerrymandering, there is no state constitutional remedy even if the courts think that that’s a violation of the constitution. It would say that legislators could enact all manner of restrictions on voting, get rid of all kinds of voter protections that the state constitution in fact prohibits. It might allow the legislatures to insert themselves and to give themselves a role in the certification of elections and the way election results are calculated. So in all these ways, I think what might strike a person is that this is a proposal that gets rid of the normal checks and balances on the way big governmental decisions are made in this country.”

The case originated from the most recent redistricting cycle in North Carolina, when the GOP-controlled state legislature passed a heavily gerrymandered new congressional map in 2021 that would have given the GOP between 71 to 78 percent of seats in a state where Trump got 49.9 percent of the vote in 2020. The North Carolina Supreme Court struck down the plan and ordered independent experts to draw new congressional lines. . . North Carolina Republicans then appealed to the Supreme Court.

But Republicans also flipped control of the state supreme court in the midterms and earlier this year a new conservative majority overturned the court’s decision striking down the congressional map, ruling that the court did not have the power to police partisan gerrymandering. That gave Republicans a green-light to pass a new congressional map that will take effect before the 2024 election and could give Republicans four new seats in the US House.

The Supreme Court ruled on Tuesday that the case was not moot and rejected the most extreme version of the independent state legislature theory outright. Justices Samuel Alito, Neil Gorsuch, and Clarence Thomas dissented, arguing that the case should have been dismissed as moot. Only two justices, Thomas and Gorsuch, fully endorsed the independent state legislature theory pushed by North Carolina Republicans. 

The case hinged on an increasingly contentious battle over how the court interprets history. . . . . leading historians of the founding era called that argument completely ahistorical, noting that the federal Constitution was adopted in large part to counter the power of the states after the disastrous early tenure of the Articles of Confederation. And as my colleague Pema Levy reported, one of the key historical documents cited by North Carolina to support its position was widely considered to be a forgery. Justice Sonia Sotomayor remarked at oral argument that North Carolina Republicans and their allies could only prevail “if you rewrite history.”

In the end, six justices agreed with that position. “Historical practice confirms that state legislatures remain bound by state constitutional restraints when exercising authority under the Elections Clause,” wrote Roberts.

Roberts, who 10 years ago wrote the majority opinion gutting the Voting Rights Act, surprisingly authored two decisions this term protecting voting rights, in Moore v. Harper and Allen v. Milligan, where the Court struck down a racial gerrymander in Alabama that deprived Black voters of fair representation.