A Reprieve for Democracy
Terry H. Schwadron
June 28, 2023
Defenders of democracy won a round at the Supreme Court yesterday in a decision that fended off a Republican campaign to put state legislatures in charge of all election procedures.
Had the 6–3 decision gone the other way — accepting the arguments put forth by Donald Trump followers, among others, it would have allowed partisan state legislative majorities to overrule the outcomes of elections through sole control of setting districting lines, voting rules and any constraints of law.
Besides the obvious partisan political overtones here, two things stood out:
First, the Court majority ruled to preserve the power of courts themselves. The argument in from North Carolina Republicans was that only the state legislature and not the state’s Supreme Court could have a say in the setting of congressional district lines — gerrymandering congressional districts in that state to give Republicans a significant majority.
But secondly, the real news here was that three justices — Clarence Thomas, Samuel Alito, and Neil Gorsuch, were perfectly fine with a court decision that would radically have redrawn how elections are done in this country.
It takes no imagination to think that Republican state legislatures in just over half the country could dictate the outcome of Electoral College results for president based on congressional districts. Apparently, the easiest way to guarantee a win is to control of who and how people can vote, fairness notwithstanding.
Even Chief Justice John G. Roberts Jr., who wrote this majority decision arguing that even states must follow the law, has in the past written in favor of outcomes that favor gerrymandering — so long as contested voting lines had been reviewed by courts.
Making this case strange was a 2022 election in North Carolina that changed the political slant of the state’s Supreme Court and a reversal of its own decision to quash the gerrymandering complains.
A Theory to Match Partisan Outcomes
This case had drawn attention precisely because it was seen as a test of an unusual “independent state legislature theory” pushed by Republicans holds that the U.S. Constitution gives that power to lawmakers even if it results in extreme partisan voting maps for congressional seats and violates voter protections enshrined in state constitutions — subject only to intervention by Congress.
Proponents of the “independent state legislature” theory cite the Constitution’s Election Clause that says, “The times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof,” and argue that means courts, governors and election administrators must give way to those with obvious partisan interest in the outcome of elections.
Chief Justice Roberts wrote for the majority that thinking was wrong: The Constitution “does not exempt state legislatures from the ordinary constraints imposed by state law.”
This decision arrived as the Court itself is under fire for a variety of decisions with partisan ripples and as it finds itself under criticism over ethics problems.
A decision that went the other way undoubtedly would have created a political tsunami at the very moment when the Court is seeking some stability in popular receptiveness, if not legal terms. The idea that a single vote or two on a Court seen increasingly as partisan could sink our increasingly fragile democracy as we understand it should send a shiver up the spine.
This is the same Roberts who has overseen until last week, the nearly constant undercutting of the Voting Rights Act and other voter protections. A narrow majority last week forced recognition that racism was behind an Alabama redistricting case that will result in redrawing of lines — despite the backing from that state legislature.
What the Court Did Not Review
Still, apart from this decision, the Court this week is nearing the end of a term with a couple of big cases still pending — including those about the future of affirmative action admission to colleges and over the power of the president to offer student loan forgiveness.
The Court’s week may be measured as well by what cases it chose to let stand without having anything more to say about them.
One such case was another election districting case from Louisiana, following a recent decision from Alabama, that preserves racial fairness in congressional districting and may well result in creating a new district in a majority-Black area of Louisiana,
Another was a vote to deny further review of a case from former Ohio State University students who were allowed to restart a sexual assault lawsuit over damages from a doctor who worked with wrestlers in a program where Rep. Jim Jordan, R-Ohio, had been a coach who failed to report abuse.
In a third case, the Court declined to take up a case challenging a skirts-only dress code for girls at a North Carolina charter school, letting stand a lower court ruling that the school’s dress code violated federal law.
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