Subterms
Lauren Justice for The New York TimesConservatives have controlled the court since 2008. Though the court upheld Wisconsin’s 2020 election results, last year it ruled drop boxes illegal, allowed a purge of the voter rolls to take place and installed redistricting maps drawn by Republican legislators despite the objections of Gov. Tony Evers, a Democrat. More
After retaining most of the governor’s offices they hold and capturing the legislatures in Michigan and Minnesota, Democrats are putting forward a long list of proposals to expand voting access.NEW ORLEANS — For the last two years, Democrats in battleground states have played defense against Republican efforts to curtail voting access and amplify doubts about the legitimacy of the nation’s elections.Now it is Democrats, who retained all but one of the governor’s offices they hold and won control of state legislatures in Michigan and Minnesota, who are ready to go on offense in 2023. They are putting forward a long list of proposals that include creating automatic voter registration systems, preregistering teenagers to vote before they turn 18, returning the franchise to felons released from prison and criminalizing election misinformation.Since 2020, Republicans inspired by former President Donald J. Trump’s election lies sought to make voting more difficult for anyone not casting a ballot in person on Election Day. But in the midterm elections, voters across the country rejected the most prominent Republican candidates who embraced false claims about American elections and promised to bend the rules to their party’s advantage.Democrats who won re-election or will soon take office have interpreted their victories as a mandate to make voting easier and more accessible.“I’ve asked them to think big,” Gov. Tim Walz of Minnesota said of his directions to fellow Democrats on voting issues now that his party controls both chambers of the state’s Legislature. Republicans will maintain unified control next year over state governments in Texas, Ohio, Florida and Georgia. In Texas and Ohio, along with other places, Republicans are weighing additional restrictions on voting when they convene in the new year.Democratic governors in Arizona and Wisconsin will face Republican-run legislatures that are broadly hostile to expanding voting access, while Josh Shapiro, the Democratic governor-elect of Pennsylvania, is likely to eventually preside over one chamber with a G.O.P. majority and one with a narrow Democratic majority.And in Washington, D.C., the Supreme Court is weighing a case that could give state legislatures vastly expanded power over election laws — a decision with enormous implications for the power of state lawmakers to draw congressional maps and set rules for federal elections.Democrats have widely interpreted that case — brought by Republicans in North Carolina — as dangerous to democracy because of the prospect of aggressive G.O.P. gerrymandering and the potential for state legislators to determine the outcome of elections. But it would also allow Democrats to write themselves into permanent power in states where they control the levers of elections.The Supreme Court’s deliberation comes as many Democrats are becoming increasingly vocal about pushing the party to be more aggressive in expanding voting access — especially after the Senate this year failed to advance a broad voting rights package.The Aftermath of the 2022 Midterm ElectionsCard 1 of 6A moment of reflection. More
Voters rebuffed the most aggressive efforts to weaken democracy in the midterms. But battles over election districts and ballot restrictions that could prove crucial in 2024 have already resumed.WASHINGTON — With Raphael Warnock’s victory in the Georgia Senate race on Tuesday, the major midterm elections are over.But the battles over voting rules, restrictions and political boundaries that will help determine who wins the next ones barely paused for ballot-counting before resuming in force.Indeed, the day after Mr. Warnock’s election, the Supreme Court heard arguments in a potentially seismic case brought by Republicans in North Carolina that could give state legislatures significantly expanded power over election laws — and virtually unlimited authority to draw gerrymandered maps.The landscape is familiar. Democrats who took control of state legislatures in Michigan and Minnesota are preparing legislation to to broaden voting access, including measures in Michigan that would mandate absentee ballot drop boxes.Republicans, who control a majority of legislatures across the country, are proposing new restrictive legislation they say would combat election fraud, though it remains exceedingly rare. And though both parties have benefited from gerrymanders, Republicans are far more likely to make it a centerpiece of their electoral strategy.In the Ohio Legislature, Republicans are poised to pass bills that would stiffen the ID requirement for casting a ballot, limit the use of drop boxes and end automatic mailings of absentee-ballot applications to voters.In North Carolina, a Republican sweep of state Supreme Court races last month makes it likely that the State Legislature will be able to gerrymander existing nonpartisan maps of congressional and legislative districts before the 2024 elections.In Wisconsin, both parties are girding for an April election that will determine partisan control of the state’s already politicized Supreme Court — and either open or shut the door on a legal challenge to an impregnable Republican gerrymander of the State Legislature.Some of that jockeying for power always goes on beneath the radar of most voters. But in the wake of more direct attacks on democracy by insurrectionists at the U.S. Capitol and by election deniers in last month’s vote, the divergent legislative priorities of the two parties — and particularly Republican reliance on restrictive voting measures and supercharged gerrymanders — reflect what has become a ceaseless tug of war over the rules of American politics and governance.“It’s not the same thing as throwing out the vote count and putting in the wrong count,” said Wendy Weiser, who directs the Democracy Program at the left-leaning Brennan Center for Justice at New York University. “But it’s a form of unfair gaming of the system to gain electoral advantage, in a way that shuts out legitimate voters.”The Aftermath of the 2022 Midterm ElectionsCard 1 of 6A moment of reflection. More
“The most important case for American democracy” in the nation’s history — that’s how the former appeals court judge J. Michael Luttig described Moore v. Harper, an extraordinary lawsuit that the Supreme Court considered in oral arguments Wednesday morning. Judge Luttig, a conservative and a widely respected legal thinker, is not one for overstatement. Yet most Americans aren’t paying attention to the case because it involves some confusing terminology and an arcane legal theory. It is essential that people understand just how dangerous this case is to the fundamental structure of American government, and that enough justices see the legal fallacies and protect our democracy.First, the back story on the case: In 2021, North Carolina lawmakers redrew their congressional maps. The state had 13 districts at the time, and its voters were more or less evenly divided between Democrats and Republicans. But the Republicans who are in control of North Carolina’s legislature didn’t want fair maps; they wanted power. In one of the most egregious gerrymanders in the nation, they drew 10 seats intended to favor themselves.The North Carolina courts were not amused. A panel of three trial judges found that the 2021 maps were “intentionally and carefully designed to maximize Republican advantage” — so much so that Republicans could win legislative majorities even when Democrats won more votes statewide. The State Supreme Court struck down the maps, finding they violated the North Carolina Constitution’s guarantees of free elections, free speech, free assembly and equal protection.That should have been the end of it: A state court applying the state Constitution to strike down a state law. But North Carolina’s Republican lawmakers appealed, arguing that the U.S. Constitution does not give state courts authority to rule on their congressional maps — even though the legislature had passed a law authorizing the courts to review redistricting plans like these. Instead, the lawmakers are relying on an untested theory that asserts that state legislatures enjoy nearly unlimited power to set and change rules for federal elections.In 2000 the chief justice at the time, William H. Rehnquist, proposed the idea in his concurring opinion on Bush v. Gore, and the independent state legislature theory has been floating around the fringes of right-wing legal circles ever since.To be clear, this is a political power grab in the guise of a legal theory. Republicans are trying to see if they can turn state legislatures — 30 of which are controlled by Republicans — into omnipotent, unaccountable election bosses with the help of the conservative supermajority on the Supreme Court. The theory has no basis in law, history or precedent. The idea that state lawmakers exist free of any constraints imposed by their constitution and state courts makes a mockery of the separation of powers, which is foundational to the American system of government. By the North Carolina lawmakers’ logic, they possess infinite power to gerrymander districts and otherwise control federal elections. It is a Constitution-free zone where no one else in the state — not the governor, not the courts, not the voters through ballot initiatives — has any say.On Wednesday morning, Justice Elena Kagan rejected the theory out of hand, saying it “gets rid of the normal checks and balances on the way big governmental decisions are made in this country. And you might think that it gets rid of all those checks and balances at exactly the time when they are needed most.”In practice, the theory that the petitioners in the case are seeking to use would turn hundreds of state constitutional provisions into dead letters in federal elections. For instance, 48 states affirmatively guarantee a right to vote in their constitutions. (The federal Constitution still does not.) Most state constitutions guarantee free, fair, equal or open elections. Even the secret ballot — so fundamental to American democracy — is a creature of state constitutions. If the justices accept the most aggressive version of the independent state legislature theory that the petitioners want them to and even if they accept a weaker version, provisions like these could become invalid overnight, because the theory holds that state constitutions have no authority to impose any regulations on federal elections. (The Constitution and federal law remain supreme, so challenges to state legislative actions could still be brought in federal courts.)Some of the justices insist that they don’t — they can’t — pay attention to the real-world outcomes of their rulings. They’re just interpreting law. By that logic, this case should be rejected on its merits.First, the theory is based on bad legal interpretation. The Constitution uses the word “legislature” in describing who has the power to regulate federal elections. Because of this word, the theory’s supporters claim, state legislatures have nearly unlimited power in that realm. But as Judge Luttig has noted, the theory has “literally no support” in the Constitution. To the contrary, the framers who wrote the Constitution were concerned that state legislatures had too much power, not too little. The text they wrote makes many references to the powers of those legislatures and of Congress, but it never says or implies that they are immune to review by the judicial branch.Second, the theory is based on bad history. The best evidence its supporters offer is a two-century-old document that has long been known to be fraudulent. Written in 1818 by Charles Pinckney of South Carolina, a founding father, it is purported to be a replica of the plan for government that he introduced three decades earlier at the Constitutional Convention. But what he submitted in 1818 was not the real deal. James Madison suspected this immediately, as have virtually all historians to examine it in the years since.When the theory’s supporters sought to claim that the practices of early state legislatures proved that their side should win, Justice Sonia Sotomayor responded, “Yes. If you rewrite history, it’s very easy to do.”Third, if the Supreme Court accepts this theory, it will create a logistical nightmare in states across the country. That’s because the theory applies only to federal elections, not state elections, in which state courts unquestionably have a role to play. As a result, there would be two sets of rules operating at the same time, one for federal elections and one for state elections. Chaos and confusion would reign.Most important, the Supreme Court has already implicitly rejected the theory many times over. In precedents stretching back decades, the court has made clear that state courts have the power to set limits on what lawmakers can do when it comes to federal elections. As recently as 2019, the court rejected a plea for it to stop the extreme partisan gerrymandering in North Carolina and other states. In doing so, Chief Justice John Roberts explained that this is exactly the role that state courts should play. “Provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply,” he wrote.At Wednesday’s argument, Justice Samuel Alito appeared to reject that premise. He accused elected state court judges, like those in North Carolina, of being political actors themselves. “There’s been a lot of talk about the impact of this decision on democracy,” said Justice Alito, who has given openly partisan speeches to outside groups and voted consistently in alignment with Republican policy priorities. “Do you think that it furthers democracy to transfer the political controversy about districting from the legislature to elected supreme courts where the candidates are permitted by state law to campaign on the issue of districting?”Another way to appreciate the absurdity of the theory is to consider who has come out for and against it. On one side, a large and bipartisan group of judges, government officials, former lawmakers, leading historians and constitutional scholars from across the political spectrum have rejected it. These include a co-founder of the right-wing legal group the Federalist Society, the chief justices of all 50 states, multiple Republican former governors and secretaries of state and civil rights organizations.On the other side, you will find a far smaller and less bipartisan cast of characters — among them, the Republican National Committee, a group of Republican state attorneys general and John Eastman, a former law professor last seen helping Donald Trump plan an illegal and unconstitutional coup to stay in office (an act that has exposed Mr. Eastman to a real risk of criminal prosecution).That so many justices would take the theory seriously is bad enough. Three of them — Justices Alito, Neil Gorsuch and Clarence Thomas — appear to favor the independent state legislature theory, as they suggested in an opinion in an earlier stage of the case. Justice Brett Kavanaugh has also indicated his openness to it. It’s worse when the public trust in and approval of the court have fallen to historic lows, thanks largely to aggressively partisan recent opinions, as this board has argued.There’s an old saying that only close cases make it to the Supreme Court. If they weren’t close, they would have been resolved in the lower courts. But Moore v. Harper isn’t a remotely close case. A ruling for the North Carolina lawmakers would flood the federal courts with election litigation that normally plays out in the states, upending the balance of federalism that defines American government. That’s not a conservative result; it’s a dangerously radical one.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More
Here’s what to know about a court case that could change the way Americans vote — and who decides how they do.For months, my inbox has been bombarded by anxious Democrats and election experts wanting to talk about a once-obscure legal theory that could fundamentally alter the way Americans vote.Known as the independent state legislature doctrine, it holds, in its purest form, that state constitutions have little to no ability to constrain state legislatures. The doctrine emerged from a novel interpretation of the U.S. Constitution’s Elections Clause, which grants states the authority to set the “time, places and manner” of federal elections.At the core of the dispute is whether the framers intended the word “legislature” in the document to be understood strictly, or whether they meant that other institutions — like state courts, governors and secretaries of state — also had important roles to play in setting and interpreting the rules around elections and voting.A fringe version of the doctrine entered the public discussion last year when it emerged that one of Donald Trump’s lawyers, John Eastman, had written a memo arguing that it even allowed state lawmakers to send their own slate of presidential electors to Washington.The Supreme Court has traditionally been gun-shy about encroaching on state courts, especially when they are interpreting their own constitutions.But a more mainstream conservative position, embraced by the Republican Party and rejected by Democrats, started gaining support on the right amid legal battles over the accommodations some states made for voters during the pandemic, like the expansion of mail voting.If adopted, the doctrine would, among other things, bar state courts from ensuring that state laws comply with a requirement, common in many state constitutions, that elections be “free and fair” — with potentially vast implications for rules on redistricting, citizen-led commissions and voting. Understand the U.S. Supreme Court’s New TermCard 1 of 6A race to the right. More
Over the past six months, the United States Supreme Court has handed down one misguided ruling after another, stripping Americans of the constitutional right to an abortion, curtailing the regulation of guns and industrial emissions, and muddying the divide between church and state. The people have protested. They’ve organized. And in 2022, they voted.In Dobbs v. Jackson Women’s Health Organization, the June decision on abortion, the majority wrote that “women are not without electoral or political power.” That’s one thing they got right, and Republicans found that out the hard way in the November midterm elections that they expected to win big. Now, however, the very ability to exercise electoral and political power at the ballot box is hanging in the balance in a case the court is scheduled to hear on Wednesday.Moore v. Harper is a case from North Carolina that state and national Republicans are using to push an extreme legal premise known as the “independent state legislature theory.” While the United States Constitution delegates the authority to administer federal elections to the states, with Congress able to supersede those state decisions, proponents of this theory argue that state legislatures are vested with the exclusive power to run those elections. This view would leave no room for oversight by state courts and put the ability of governors to veto election-related legislation in doubt.The court’s decision on this alarming argument could fundamentally reshape American democracy. Four justices have suggested that they are sympathetic to the theory. If the court endorses this doctrine, it would give state legislatures sole power over voting laws, congressional redistricting, and potentially even the selection of presidential electors and the proper certification of election winners.Indeed, the North Carolina Supreme Court, in a decision earlier this year, said the theory that state courts are barred from reviewing a congressional redistricting plan was “repugnant to the sovereignty of states, the authority of state constitutions and the independence of state courts, and would produce absurd and dangerous consequences.”You can look to North Carolina to see the potential for dire consequences. In 2010, Republicans took over the state legislature in a midterm election. Since then, North Carolina has been ground zero for Republican attempts to manipulate elections. As the state’s attorney general and now governor since 2017, I’ve dealt with Republican legislative leaders as they advanced one scheme after another to manipulate elections while making it harder for populations they have targeted to vote.These schemes robbed voters from the start to the end of an election: a voter ID requirement so strict that a college ID from the University of North Carolina isn’t good enough. No same-day registration during early voting. No provisional ballots for voters who show up at the wrong precinct. Shorter early voting periods eliminated voting the Sunday before Election Day, a day when African American churches hold popular “souls to the polls” events.Fortunately, these measures were stopped in 2016 by the U.S. Court of Appeals for the Fourth Circuit, which described them as targeting African Americans “with almost surgical precision.”Republicans in the legislature have also gerrymandered districts in diabolical ways. In 2016, state Republicans drew a congressional redistricting map that favored Republicans 10-3. They did so, the Republican chairman of a legislative redistricting committee explained, “because I do not believe it’s possible to draw a map with 11 Republicans and two Democrats.”North Carolinians have relied on courts and my veto power as governor to foil many of these schemes. In 2022 a successful lawsuit in state court challenging a 2021 gerrymandered congressional map resulted in fair districts, splitting the state’s 14 districts (the state gained a district after the 2020 census) so that Democrats and Republicans each won seven seats in November’s elections. It seemed only right, given the nearly even divide between Democratic and Republican votes statewide. Republican efforts to avoid this result led to the Moore v. Harper appeal now before the Supreme Court.As recently as 2019, Chief Justice John Roberts wrote in a majority opinion on partisan gerrymandering claims in Maryland and North Carolina that state courts were an appropriate venue to hear such cases but that those claims were political issues beyond the jurisdiction of the federal courts. Retreating from that position on the role of state courts would be a shocking leap backward that would undermine the checks and balances established in state constitutions across the country.Republican leaders in the North Carolina state legislature have shown us how the elections process can be manipulated for partisan gain. And that’s what you can expect to see from state legislatures across the country if the court reverses course in this case.Our democracy is a fragile ecosystem that requires checks and balances to survive. Giving state legislatures unfettered control over federal elections is not only a bad idea but also a blatant misreading of the Constitution. Don’t let the past decade of North Carolina voting law battles become a glimpse into the nation’s future.Roy Cooper, a Democrat, has been the governor of North Carolina since 2017. He was previously elected to four terms as attorney general.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More
