The Briefing: A victory for checks and balances

Sanity prevailed today at the U.S. Supreme Court. In Moore v. Harper, six justices issued a near-total rejection of the “independent state legislature theory” — a bogus and ahistorical reading of the Constitution that would have stripped important checks and balances out of federal election administration and opened the door wide to extreme partisan gerrymandering and voter suppression.

Regular readers of The Briefing know the story of this case. North Carolina is evenly divided politically. During the 2020 redistricting cycle, the state legislature drew a ludicrously gerrymandered congressional map that would have produced 10 Republican and 4 Democratic House members. The state supreme court ruled that the map violated the free elections clause of the state constitution and ordered the legislature back to the drawing board.

Members of the North Carolina legislature appealed directly to the U.S. Supreme Court. They did not contest the state court’s conclusion that the map was gerrymandered. Rather, they argued that the state court had no authority to review the legislature’s actions — that the Elections Clause of the U.S. Constitution grants state legislatures near-absolute authority over federal election administration and that neither governors, state judges, nor state constitutions can review the legislature’s actions. In other words, when it comes to federal election administration, there are no checks and balances at the state level.

This was as absurd as it sounds. It lacked any grounding in logic, precedent, structure, or history. For more than 200 years, no one ever read the Elections Clause this way. Indeed, from the very beginning of the republic, governors, state courts, and state constitutions participated in federal election administration. The historical case for the theory is so weak that proponents cited a draft of the Constitution that turned out to be a 19th-century fraud.

The independent state legislature theory would have utterly upended our system of elections. According to Brennan Center research — which was submitted to the Supreme Court for consideration in the case — adopting the theory would have undermined hundreds of state constitutional provisions, hundreds of state court decisions, and more than 650 delegations of authority by state legislatures to other state officials to administer federal elections.

Today, the justices killed off the independent state legislature theory. The Court reviewed the lengthy history of judicial review of election administration at the state level. It recognized that around the time of the founding, some states explicitly granted veto power over the redrawn maps to state governors. “The Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review,” concluded Chief Justice John Roberts, writing for the majority.

Roberts accused Justice Clarence Thomas — often described as the Court’s foremost originalist — of “simply ignor[ing]” the uninterrupted thread of history and precedent contradicting the independent state legislature theory and of failing to account for the framers’ understanding of the structure of our government. Ouch.

Unfortunately for the people of North Carolina, the Supreme Court’s decision will not restore fairness to their electoral maps. When conservatives won control of the state supreme court in a recent election, the justices overruled their predecessors and reinstated the gerrymandered map. Those maps will remain in place until the next redistricting cycle.

Also, the Court should never have heard the case — there is now a more or less perfect record that no court has ever upheld this fringe theory.

The headline is that checks and balances persist in election administration, and a party that seizes a legislative majority cannot abuse its position to entrench itself in unchecked power. The independent state legislature theory is dead.

A Decade of Weakened Voting Rights Protections

Last Sunday marked 10 years since the Supreme Court’s decision in Shelby County v. Holder dealt a mortal blow to a crucial provision of the Voting Rights Act of 1965. The ruling struck down a requirement for places with histories of racial voting discrimination to get federal approval for election policy changes, opening the door for states to pass restrictive voting laws without advance checks. Since then, the Court has continued to roll back protections for voting rights, with clear repercussions: in the past decade, at least 29 states have passed 94 restrictive voting laws. And voters of color have been disproportionately impacted, with Brennan Center research finding that the gap between white and Black voter turnout has grown in Alabama and other states across the country. Surveying the effects of Shelby County makes clear that Congress must remedy the harm done by the Supreme Court by restoring and strengthening the Voting Rights Act. Read more

Historians Take On Originalism

The Supreme Court has embraced a hardcore form of originalism that seeks to limit Americans’ rights to the values of the 18th century. A new Brennan Center project enlists historians to expose the flaws in the Court’s wrongheaded and toxic use of history. One resource describes the trove of briefs that experts have filed before the Supreme Court to set the historical record straight on issues such as partisan gerrymandering, gun control, and affirmative action. Another describes judges’ broad concerns about the unworkable “history and tradition” test the Supreme Court established for evaluating gun rights claims. Historians’ expertise will be vital in developing novel ways of using history to define our modern constitutional rights. READ MORE

The Evolution of State Constitutions

Earlier this year, the Washington Supreme Court upheld its state capital gains tax in a decision that adopted a new view of the Washington Constitution’s Privileges or Immunities Clause. Though the court had previously adhered closely to federal precedent, it pointed to historical evidence and textual differences to affirm the need to interpret its state’s provision independently. The court’s changing view of the clause “provides a model of how to honor the intentions of state constitutional framers while also responding to changing times,” law professor Martha Davis writes in State Court Report. Read more

Tackling Congress’s Failures on Tech

Since March, Congress has held at least 10 hearings about artificial intelligence in a bid to determine how to regulate this rapidly evolving area. But because Congress lacks sufficient expertise and a committee focused solely on technology, lawmakers may struggle to act as quickly and effectively as they need to. “A dedicated technology committee could channel the tremendous energy swirling around A.I. into a series of connected hearings and legislative efforts, thanks to the assistance of expert staff,” Maya Kornberg writes in Slate. READ MORE

News

Sean Morales-Doyle and Robyn Sanders on restrictive voting laws in North Carolina // NC NEWSLINE
Eliza Sweren-Becker on the lawsuit against Florida’s voter registration form // ORLANDO SENTINEL
Michael Waldman on the Supreme Court’s power grab // BLOOMBERG

Feedback on this newsletter? Email us at [email protected]

Brennan Center for Justice at NYU School of Law

120 Broadway, Suite 1750 New York, NY 10271
646-292-8310
[email protected]

Support Brennan Center

Want to change how you receive these emails or unsubscribe? Click here to update your preferences.