The Supreme Court could radically reshape elections for president and Congress
[POST-BROADCAST CORRECTION: This report incorrectly suggests that the independent state legislature theory could be applied to state legislative elections. An earlier version of the report also incorrectly suggested that the theory could be applied to state legislative maps. In fact, supporters of the theory argue that it applies to elections and voting maps at the federal level.]
RACHEL MARTIN (HOST): The U.S. Supreme Court is taking on a case next term that could radically reshape federal elections.
A MARTINEZ (HOST): Many legal scholars are warning that depending on how the court rules, it could lead to more attempts by Republican state lawmakers to subvert elections, including the 2024 presidential election.
MARTIN: NPR's Hansi Lo Wang has been covering all this, and he joins me now. Hey, Hansi.
HANSI LO WANG (BYLINE): Hey, Rachel.
MARTIN: Tell us about the case that's at the center of all this.
WANG: Well, Republican state lawmakers in North Carolina brought this case, and they're trying to bring back a voting map of congressional districts that state courts threw out after finding partisan gerrymandering that violates North Carolina's state constitution. And these Republican lawmakers are basing their appeal to the U.S. Supreme Court on this controversial fringe legal theory. It's called the independent state legislature theory.
MARTIN: And what does that mean?
WANG: Well, this theory is based on a very controversial reading of the U.S. Constitution. It basically claims that the Constitution gives state legislatures the power to control how elections for Congress and for president are run without any limits from state constitutions or state courts. Now, there are federal laws passed by Congress and the U.S. Constitution that legislatures have to keep in mind still. But Vikram Amar, dean of the University of Illinois College of Law, told me this theory, if endorsed by the Supreme Court, could give legislatures a lot of unchecked power over federal elections. Let's listen.
VIKRAM AMAR (UNIVERSITY OF ILLINOIS COLLEGE OF LAW): It is really a grave danger to American democracy to say that state legislatures are free from state constitutions to do whatever they want. State constitutions are an important source of American democracy limits and rights, and I think it would be terrible if the U.S. Supreme Court distorted federalism to reject that very important premise.
MARTIN: So tell me if I'm wrong, Hansi, but does this mean this could potentially take away independent oversight of elections from state courts and then put it in the hands of some of the very people who could be on the ballot in the elections?
WANG: Yes, potentially. And if the Supreme Court endorses this theory, another possibility is that it could be easier in some states for members of Congress of a certain party to stay in power, with lawmakers putting in place maps of congressional districts that state courts find are gerrymandered to give one party an unfair advantage during elections. And, you know, we've heard a version of this theory during the January 6 committee's hearings, when they've talked about the fake elector scheme that former President Donald Trump supporters were trying to carry out to change the outcome of the 2020 election. And a potential Supreme Court endorsement of this theory could provide the legal justification for another similar attempt.
So this case could have major implications for the 2024 presidential election because some states with Republican-controlled legislatures may see the Supreme Court's potential support for the theory as an invitation to set new election rules that take power away from voters when picking electors for the next Electoral College.
MARTIN: So they could potentially pick their own slate of electors.
MARTIN: Do we know when the Supreme Court is going to rule on this?
WANG: We don't know exactly. The court is scheduled to hear this case in their next term, which starts in October. But we may not get a ruling until a year from now. And I should note that four conservatives on the court - Justices Samuel Alito, Neil Gorsuch, Clarence Thomas and Brett Kavanaugh - have signaled they're interested in this theory. And based on a dissenting opinion three of them put out back in March, for emergency request in this case, Alito, Gorsuch and Thomas signaled they would likely side with the North Carolina Republican lawmakers' support for this theory.
MARTIN: It would have such huge consequences. NPR's Hansi Lo Wang. Thank you, Hansi.
WANG: You're welcome.
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Correction July 11, 2022
This report incorrectly suggests that the independent state legislature theory could be applied to state legislative elections. An earlier version of the report also incorrectly suggested that the theory could be applied to state legislative maps. In fact, supporters of the theory argue that it applies to elections and voting maps at the federal level.