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US Republicans appeal to the Supreme Court to give state legislatures extra powers over elections

Former US president Donald Trump has falsely claimed the 2020 presidential election was stolen from him through voting fraud. Photo: Jonathan Ernst / Reuters

Andrew Chung and Nate Raymond

December 08 2022 02:30 AM

The US Supreme Court engaged in tense arguments yesterday in a Republican appeal that could transform American elections by giving politicians more power over voting rules and curbing the ability of courts at state level to scrutinise lawmakers’ actions in a major case involving North Carolina’s congressional districts.

The top court, which has a 6-3 conservative majority, heard about three hours of arguments, with some of its conservative members including Samuel Alito and Clarence Thomas indicating sympathy toward the Republican arguments.

The position of others including Chief Justice John Roberts was harder to read, raising the possibility of a ruling less broad than the Republican state lawmakers pursuing the appeal seek. The three liberal justices signalled opposition to the Republican arguments.

Lawmakers are appealing a decision by North Carolina’s top court to throw out a map delineating the state’s 14 US House of Representatives districts – approved last year by the Republican-controlled state legislature – as unlawfully biased against Democratic voters.

Republican lawmakers are asking the Supreme Court to embrace a once-marginal legal theory that has gained favour among some conservatives called the “independent state legislature” doctrine.

Under that doctrine, they claim that the US Constitution gives state legislatures – and not other entities such as state courts – authority over election rules and electoral district maps.

Critics have said the theory, if accepted, could upend American democratic norms by restricting a crucial check on partisan political power and breed voter confusion with rules that vary between state and federal contests.

North Carolina’s Department of Justice is now defending the actions of the state’s High Court alongside the voters and voting rights groups that challenged the Republican-drawn map. They are backed by Democratic President Joe Biden’s administration.

“This is a proposal that gets rid of the normal checks and balances on the way big governmental decisions are made in this country,” liberal Justice Elena Kagan said, referring to the interaction between the executive, legislative and judicial branches of government.

“And then you might think that it gets rid of all those checks and balances at exactly the time when they are needed most.”

The US is grappling with sharp divisions over voting rights. Republican-led state legislatures have pursued new voting restrictions in the aftermath of Republican former US president Donald Trump’s false claims that the 2020 election was stolen from him through voting fraud.

“Think about consequences,” Justice Kagan said, “because this is a theory with big consequences.”

She said the theory would free state legislatures to engage in the “most extreme form of gerrymandering” – drawing electoral districts to unfairly improve a party’s election chances – while enacting “all manner of restrictions on voting” and ending “all kinds of voter protections”.

Justice Kagan said state legislators often had incentives to suppress, dilute and negate votes.

She said the theory also could free legislatures to insert themselves into the certification of the outcome of federal elections – a sensitive issue in light of the January 6, 2021, rampage at the US Capitol by Trump supporters who sought to block congressional certification of Biden’s 2020 election victory.

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US Republicans appeal to the Supreme Court to give state legislatures extra powers over elections

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