Editor’s Note: Joshua A. Douglas is a professor at the University of Kentucky J. David Rosenberg College of Law. He is the author of Vote for US: How to Take Back Our Elections and Change the Future of Voting . Follow him on Twitter @JoshuaADouglas. The opinions in this commentary are his own. Read more opinion at CNN.com.
On the heels of groundbreaking decisions on Roe v. Wade and gun rights, the US Supreme Court appears poised to take up another case with the potential to profoundly reshape American life – this time at the ballot box. The case in the upcoming Court session could make it easier for political incumbents to entrench themselves in office and could even put the 2024 election in peril.
After already making it harder for voting rights advocates to secure protection for the right to vote through restrictive rulings that defer to state legislatures, the Court now seems poised to cut off protection from state courts as well.
The justices have agreed to hear Moore v. Harper, a case that hinges on a technical legal issue with immense implications, and that raises the question of whether there any limits to the kinds of election rules that state legislatures may pass.
The case began when Republican state legislators in North Carolina enacted an extreme partisan gerrymander that the state supreme court struck down as unlawful. Now these lawmakers are arguing that state courts cannot constrain them when it comes to the political maps they draw. And they are asking the US Supreme Court to say that the state supreme court had no authority to render a ruling under the state constitution.
That’s right – the argument is that the state supreme court is powerless to issue a ruling about state law, at least as it applies to federal elections in the state.
State legislatures are typically not free agents in promulgating laws. They must enact legislation consistent with both the US Constitution and the state’s constitution. State judges can oversee those rules and strike down laws that go too far. This process of judicial review – embedded within our constitutional structure for centuries – ensures that state legislatures do not flout core constitutional protections.
But Moore v. Harper could reverse that key aspect of checks-and-balances for rules about the voting process.
The North Carolina Republicans claim that because the US Constitution delegates authority to create voting rules for federal elections to the state “legislature,” then the legislature – and only the legislature – may have a hand in determining those rules.
The US Constitution says that “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” North Carolina Republicans think that this clause means that the state legislature has virtually unlimited authority in this field.
The idea is known as the “independent state legislature” theory. It suggests that state courts overstep their bounds when they strike down election laws under the state constitution. In invalidating a voting rule that applies to federal elections, the argument goes, the state court is taking away authority from the state legislature, contrary to what is dictated by the US Constitution.
Even secretaries of state or election boards – which oversee elections – would not be allowed to promulgate voting rules not explicitly authorized by state legislatures. Taken to its extreme, a legislature might even keep the authority for resolving a dispute about the presidential election for itself and then ultimately declare the winner it wants, outside of the constraints of the state constitution. Nothing could be more anti-democracy.
This argument is as dangerous as it is wrong.
It’s dangerous because it would give state legislatures a free pass to enact whatever voting rules they want, free from limits of the state constitution. The only protection would be from the US Constitution – which the Supreme Court has already interpreted narrowly when it comes to voting rights.
But state constitutions are much more robust than the US Constitution in protecting the fundamental right to vote. The US Constitution does not explicitly protect the right to vote, while state constitutions include text that both confer voting rights and, in many states, require elections to be “free and equal” or “free and open.”
Moreover, the US Supreme Court has been particularly stingy in its voting rights rulings, unduly deferring to state rules, while state courts have invoked their state constitutions to better protect voters.
Voting rights advocates have understandably turned to state courts more than the federal courts because of the US Supreme Court’s poor jurisprudence in this area. Agreeing with Republicans in this new case from North Carolina would cut off that state court protection as well.
The idea that state courts cannot use their state constitutions to limit state legislatures is also wrong as a matter of text, history, and common sense.
Textually, conferring authority to state “legislatures” to promulgate election rules says nothing about whether those legislatures must follow the rules of their state constitutions. Indeed, state constitutions create and give authority to state legislatures. It’s absurd to suggest that the very governing document that created the legislature cannot also bind it. In fact, the North Carolina legislature proposed the current version of the state constitution – including the provision that protects the right to vote and declares that elections shall be “free.”
As a new law review article by Vikram David Amar and Akhil Reed Amar points out, the Founding Fathers did not understand state legislatures “to mean a free-floating body untethered to the state constitution.” Quite the opposite: state constitutions both created and constrained state legislatures.
The US Supreme Court rejected the independent state legislature idea as recently as 2015, in a case out of Arizona. Republicans in that state argued that a people’s ballot initiative to create an independent redistricting commission violated this concept because it took away authority from the state legislature to draw the lines.
The Court disagreed, on a 5-4 vote. But the Court has changed considerably since then, with the addition of three conservatives Justice Neil Gorsuch, Justice Brett Kavanaugh and Justice Amy Coney Barrett.
Indeed, Gorsuch and Kavanaugh, along with Justices Clarence Thomas and Samuel Alito, expressed support for the idea that state courts cannot invalidate state election laws during some of the 2020 election litigation, though the Court did not face the issue head-on. It would take only one more vote to create a majority for this rule. Chief Justice Roberts dissented in that Arizona case, suggesting that he might agree with the idea, though he did not join the other conservatives more recently when they opined about it. Barrett, too, might join her other conservative justices.
The fact that the Court even agreed to hear the case is itself a troubling sign. If the justices side with the North Carolina Republicans, the upshot will be that state legislatures will be wholly unconstrained from crafting whatever election rules they want for federal elections, free from the strong voting rights protection that state constitutions confer.
They could enact restrictive rules for voter eligibility, voter ID, or scores of other measures without worrying about judicial oversight. They could muck up the 2024 vote casting and counting process with less judicial oversight.
We already have a skewed democracy thanks to partisan gerrymandering and restrictive elections, which make it easier for incumbents to craft rules to help keep themselves in power. If the Supreme Court agrees with North Carolina Republicans in this new case, then our democracy will become even more tilted in favor of those powerful interests.