A group (the Conference of Chief Justices) representing the Chief Justices on each and every Supreme Court across the states and territories of the U.S. recently filed a legal brief with the U.S. Supreme Court opposing the so-called independent state legislature theory, which North Carolina legislators are hoping the nation’s highest court accepts.
The legal brief doesn’t formally support either side in the case, but its arguments are in clear opposition to those from the North Carolina Republicans. The theory these Republican legislators are pushing could free state legislators from judicial oversight within their state court systems of their handling of federal elections. Concerns already even circulated about the possibility that rogue state legislators could use the freedoms provided by the Supreme Court potentially providing its support to the theory for giving their individual states’ electoral votes to whichever candidate they prefer, no matter who actually won the popular vote.
Before that point, making the independent state legislature theory into legal reality could let state legislators enact draconian restrictions on the electoral process that serve no real-world purpose other than making it more difficult to vote. The currently unfolding legal challenge, on which the U.S. Supreme Court will decide before the 2024 elections, is connected to the North Carolina state legislature’s complaints about a rejection of its redistricting plans by the state judiciary.
The new legal brief is not individually signed by the Chief Justices of each state and territory, but The News & Observer, which is a North Carolina newspaper, summarizes the court filing as “from the state supreme court justices.” The group operates on their behalf. The brief recounts some of the well-founded history of the judicial review of legislative actions. “Judicial review — review of a legislature’s act for its compliance with other laws and the constitution — preceded the Founding and is embedded in the U.S. Constitution and numerous state constitutions of the Founding era,” the document argues, in a portion highlighted by the Observer. Although the high-profile court case, in which the legislators’ arguments hinge in part on comments from the late U.S. Supreme Court Justice Antonin Scalia, is directly connected to redistricting, North Carolina state legislators also lost in multiple other policy areas, like voter ID, in court challenges unfolding across recent years.
John Eastman — yes, that John Eastman — also filed a legal brief as the Supreme Court prepares to hear oral arguments at some point in the North Carolina case. As summarized by the Observer, Eastman’s arguments acknowledge the Supreme Court previously ruled against the concept of a functionally independent state legislature, at least in the context of federal elections, but he argues now is the time to set things right after Justices supposedly erred in their decision-making in the multiple past cases in which they dealt with and rejected similar claims. The idea that state legislatures should hold sole legal responsibility for leading the handling of federal elections could prove immensely destructive if gerrymandering lets an unrepresentative collection of legislators get into power where they run elections however best fits their own political purposes.
In July, the Committee on House Administration — where Reps. Zoe Lofgren (D-Calif.) and Jamie Raskin (D-Md.), among others, are panel members — held a hearing featuring three expert witnesses dealing with the so-called independent state legislature theory. No matter the precise form of the theory, and what caveats those pushing it (in whatever form) might provide, all three witnesses concluded it was dangerous. “I think all of our expert witnesses have demonstrated that there is no foundation in the text of the Constitution, in the structure of our constitutional system, in the history or the practice of elections for this radical and brazen claim,” Raskin said at the hearing’s end. “And I’m glad we seem to have some kind of bipartisan agreement about the strangeness of this doctrine.”