Republicans contend that the Constitution’s Elections Clause, which states that the "Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof" gives state legislatures—and only legislatures—the power at the state level to shape the rules governing federal elections in their states. Only Congress or federal courts, not state courts—and possibly not citizen-initiated constitutional amendment or even governors—can override such rules.
However, a long body of scholarship disputes that this position, known as the "independent state legislature doctrine," is what the Constitution’s framers intended. In fact, the Supreme Court rejected very similar arguments in a 2015 case seeking to strike down Arizona's independent redistricting commission, which was established by a voter-approved constitutional amendment in 2000.
But critically, two of the justices in the majority in that 5-4 decision, Ruth Bader Ginsburg and Anthony Kennedy, have been replaced with far-right appointees of Donald Trump who are more amenable to blowing up two centuries of the constitutional order in order to advance Republican interests. And while Chief Justice John Roberts writing for all five GOP appointees on the court in 2019 explicitly held that state courts could police partisan gerrymandering while barring federal courts from doing so, this Supreme Court has shown an unparalleled willingness to reverse prior rulings, such as in their recent decision overturning Roe v. Wade.
Indeed, four Republican-appointed justices—Samuel Alito, Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh—have already indicated their support for the North Carolina GOP’s position in earlier rulings, while Roberts dissented in the 2015 Arizona case. Only Amy Coney Barrett has yet to reveal her views.
If the Supreme Court's far-right majority rules in favor of North Carolina Republicans in this case, it could fundamentally dismantle what’s left of democracy in a number of states. Such a decision would empower state lawmakers—who often owe their positions to maps that are already gerrymandered—to set federal election laws without any constraints by state judges interpreting state constitutions. In its most extreme form, such a ruling could even strip ballot initiatives and governors of their power to curtail or override legislative action.
If such a ruling comes to pass, Republican-run legislatures across the country would be free to pass even more extreme gerrymanders and voting restrictions. Fair congressional maps imposed by state courts in North Carolina and Pennsylvania would be the first to go. Republicans in Arizona, Michigan, Wisconsin, and elsewhere could join them if the Supreme Court strips governors and ballot measures of the power to shape federal election law.
Democrats in independent redistricting commission state California would also be able to gerrymander again, but far more GOP-run states would be empowered to do so. The asymmetry goes even further since only Republicans are interested in enacting laws that suppress the vote, which the independent state legislature doctrine would give them near-unfettered power to do.
Democrats in Congress have an imperative to protect our democracy before they potentially lose their majorities this November. If Senate Democrats could muster unanimous support for finally curtailing the filibuster, they could pass a federal law banning gerrymandering and protecting voting rights, as Democrats tried to do earlier this year. They were thwarted, however, because Sens. Joe Manchin and Kyrsten Sinema sided with every Senate Republican to sustain a filibuster.
The increasingly lawless Supreme Court was itself installed by Republican minority rule: Five of the six GOP appointees were confirmed by Republican Senate majorities that won fewer votes and represented fewer Americans than the Democratic minorities, and three were chosen by a president who was elected despite losing the popular vote. Democrats must therefore strongly consider expanding the Supreme Court if we’re to have any hope of constraining its full-scale assault on the right to vote in free and fair elections.
Election law attorney Adam Bonin joins Daily Kos Elections’ The Downballot podcast to talk about what moves Democrats can make