In a rare foray of state courts’ chief justices into U.S. Supreme Court matters, the Conference of Chief Justices filed a brief - this month to weigh in against the radical, once-fringe elections law fight brought by North Carolina lawmakers, Moore v. Harper. The Republican lawmakers are using the “independent state legislatures” theory, and—long-debunked fraudulent arguments for it—to eliminate the role of the state courts in providing a check on gerrymandering and voter suppression,
The Conference is comprised of Chief Justice John Roberts equivalents for all 50 of the states, the District of Columbia, and the U.S, territories. In our federalist system, states are recognized as sovereign governments within the limits proscribed by the Constitution. “State sovereignty includes the power of each state to structure its own government and determine the relationships between the legislative and judicial branches,” the conference argues in its brief. If the SCOTUS finds for the lawmakers, they would be mandating an erosion of those state-level checks and balances, taking away the role of state courts in reviewing legislative decisions about federal elections.
“It’s the biggest federalism issue in a long time,” Chief Justice Nathan L. Hecht of the Texas Supreme Court told The New York Times’ Adam Liptak. “Maybe ever.”
Democrats have to prevail in critical state and federal races this election. Period. And when Democrats win a real congressional majority, court expansion has to be on the agenda.
The Conference does not support either of the parties in the case with this brief. It is arguing for history, for the Constitution, for sanity. It’s a testament to how dangerous this voting rights threat, this elections threat, is. The Constitution, the brief said, “does not oust state courts from their traditional role in reviewing election laws under state constitutions.”
“It’s highly unusual for the Conference of Chief Justices to file an amicus brief in the Supreme Court,” Nicholas Stephanopoulos, a law professor at Harvard told the Times. “It’s even rarer for the conference to do so in a controversial, ideologically charged case.”
“That the conference is willing to take a stand here highlights how extreme and dangerous the argument of the North Carolina legislators is,” he continued. “That argument would undermine the authority of state courts to interpret state law—a bedrock principle of our system of federalism, and one that conservative justices historically championed, not questioned.”
The North Carolina lawmakers are arguing for a ridiculously literal interpretation of 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,” arguing that “Legislature” in means that only legislatures have power at the state level to shape the rules governing federal elections in their states. The other clause the lawmakers dispute, the one that presents an imminent threat in the next presidential election, is the Presidential Electors Clause, which reads, “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors.”
The use of the “Legislature” in these clauses has been interpreted for forever to be a sort of shorthand for the state’s lawmaking processes, encompassing all of the procedures and limitations implied, including judicial review. Of course the writers of the constitution
The state of Texas is one of a handful who have filed briefs supporting the North Carolina legislators. Which makes Chief Justice Hecht warning in the Times article that they’re not going to stop at redistricting all the more important to heed—he’s seen up close what these people are capable of.
“The Constitution’s language is very broad about time, place and manner of elections,” he said. “So that’s mail-in ballots, what it takes to register, what ID you have to show, how late the polls are open, how the ballots are counted, who gets to sit and watch when they do. The state courts get scores of these cases in virtually every election.” That means this case “will profoundly affect both the state and the federal courts.”
One would hope that the SCOTUS justices would at least be respectful enough of their equivalents in the states to take this brief to heart. But at least four of the conservatives have already indicated that they’re sympathetic to whack-job theory. And it only takes five to blow a Trump size hole in our democracy.
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