During the bitter legal battles over the 2020 presidential
election, conservative US Supreme Court justices signaled an embrace of a
once-marginal legal doctrine that largely gives state legislatures power to set
election rules.
اضافة اعلان
If applied aggressively by the court, the "independent
state legislature doctrine," could further empower states to limit voting
rights at a time when Republicans, emboldened by former US president Donald
Trump's baseless claims of election fraud after his loss to Democratic
President Joe Biden, are enacting new restrictions.
"It is a ticking time bomb," said Rick Hasen, a
professor at the University of California, Irvine School of Law.
The doctrine could limit the ability of courts to block
voting rules that violate state law.
It could also make it harder to challenge
the drawing of electoral districts to entrench one political party in power —
known as gerrymandering — and factor into lawsuits that arise in the heat of an
election.
The doctrine threatens another avenue for challenging
election restrictions and maps as plaintiffs and voting rights advocates have
increasingly turned to state courts for relief.
Unlike the
US Constitution,
which implies the right to vote but does not explicitly grant it, most state
constitutions expressly protect the right to vote.
"It would give the legislatures the authority to pass any
voting rules they want without meaningful oversight, particularly under the
state constitution," said Josh Douglas, a voting rights expert at the
University of Kentucky Rosenberg College of Law.
This can undermine voting
rights by letting legislators craft rules that help them win re-election, he
added.
The doctrine is based in part on language in the US
Constitution that the "times, places and manner" of federal elections
"shall be prescribed in each state by the legislature thereof."
Four of the Supreme Court's six conservative justices
appeared to lend weight to the doctrine during the flurry of litigation around
the 2020 election, when Republican lawmakers or officials sought to block lower
court decisions allowing or requiring changes to election deadlines and other
rules to account for the coronavirus pandemic.
In a Wisconsin case, Justice Brett Kavanaugh, agreeing with
the court's October 26 decision to prevent an absentee ballot deadline
extension, said in his opinion that "state courts do not have a blank
check to rewrite state election laws for federal elections."
Two days later, in a similar case from North Carolina,
Justice Neil Gorsuch called it "egregious" that a state court and
election officials "worked together to override a carefully tailored
legislative response to COVID."
Justice Samuel Alito and Justice Clarence Thomas raised
similar concerns about the Pennsylvania Supreme Court's decision to extend
ballot deadlines.
'Very difficult road'
Given the court's higher hurdles for proving violations of
the federal Voting Rights Act, a law that prohibits racial discrimination in
voting, or the US Constitution, election law attorneys and voting rights
advocates say they are concerned.
"When you add all that together, it signals a very
difficult road for voting rights litigation in the future," said Dale Ho,
an American Civil Liberties Union lawyer.
The increasing rightward shift of the nine-member Supreme
Court also raises questions whether it will overturn a 2015 ruling that
narrowly upheld Arizona's decision to establish an independent commission to
draw congressional districts.
The court interpreted the constitution's "times,
places, and manner" provision as referring not to a specific legislative
body but instead to a state's general authority to legislate on the issue.
Two of the justices in the majority in 2015, including the
late liberal Justice Ruth Bader Ginsburg, who authored the decision, are no
longer on the court.
"It’s a very open question whether, with the change in
composition of the court: is that subject to overruling?” said University of
Kentucky's Douglas.
If it is, it could at a minimum threaten redistricting
commissions in other states that were established via ballot initiatives.
Michael Morley, a professor at Florida State University
College of Law, who earlier this year published an article in support of the
doctrine, said it is a misconception that it would let legislatures "run
amok."
Even without limits under state law, they would still be
constrained by protections enshrined in the US Constitution, he said.
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Opinion and Analysis
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