Supreme Court could put more power in hands of Legislature to control elections, redistricting
Legislators heading upstairs in the Capitol. (Photo: John Partipilo)
The U.S. Supreme Court appears to have been ruling out the conservative playbook lately and, on the heels of overturning Roe v. Wade and outlawing abortion in addition to determining teachers and coaches can conduct prayers at extracurricular events, the court will consider Moore v. Harper, a North Carolina case that could wind up invoking what is called the “independent state legislature doctrine.”
Such a move could remove state courts from important legal matters and give legislatures authority to set district lines and election rules as they see fit, with only the federal court system designated as a referee.
“It would be good for gerrymandering but bad for representative democracy,” says MTSU political science professor Kent Syler, former chief of staff for Democratic U.S. Rep. Bart Gordon of Tennessee. “The country’s founders were very fearful of giving one branch of government too much power, and that’s why they had checks and balances.”
If the court were to rule for a stronger state legislature that’s not subject to judicial review or executive review in the state, “that certainly gives one branch of state government more power and what some people would call dangerously more power to impact not only redistricting but also election law. It would potentially be a pretty major change in the shared powers of the three branches of state government,” Syler says.
Tennessee’s legislature already holds an advantage over the governor in that a simple majority in both houses is needed to override a veto.
The issue stems from a North Carolina case where legislative Republicans are upset that a Democratic majority on the Supreme Court overruled their redistricting plan, which would have increased the number of GOP seats substantially. The U.S. Supreme Court is still deciding whether to hear the case and could take it up next term.
The high court has never invoked the doctrine, but three justices broached the idea in deciding the Bush v. Gore case in 2000 that determined the outcome of the presidential vote, the Associated Press reported.
In addition, four Supreme Court justices, including Clarence Thomas, Samuel Alito and Neil Gorsuch, endorsed it after former President Donald Trump tried to use the doctrine to overturn the 2019 election results by having state legislatures in battleground states consider alternative lists of electors. That was followed by remarks from Chief Justice Brett Kavanaugh that the matter will continue to come up until the court makes a decision.
Along with the gerrymandering case in North Carolina, Pennsylvania Republicans are advancing an argument that the Legislature should have complete control over redistricting and federal elections without state court oversight.
In a sense, the Tennessee Legislature stepped into this question when it created a three-member judicial panel in 2021 to hear constitutional challenges to state law and redistricting lawsuits in advance of the 2022 adoption of a 10-year redistricting plan.
Oddly enough, the panel it set up to hear redistricting cases ruled against the Republican-controlled Senate’s redistricting plan, mainly because the districts it drew in Davidson County were not sequentially numbered as required by the state Constitution. The Tennessee Supreme Court, however, overruled the lower court’s decision and decided that forcing the Senate to redraw districts would cause confusion in the electoral process by delaying a primary election.
Despite the way that played out, Lt. Gov. Randy McNally said this week he would favor such a move.
“The Founding Fathers in their infinite wisdom set up a federal system. This system inherently gives the individual states wide latitude and broad power. That power has gone increasingly unrecognized,” McNally, an Oak Ridge Republican, said in a statement. “State legislatures are the most appropriate voice for the people in individual states. With Tennessee being one of the most well-run states in the nation, I would welcome any decision that increases the power of the people of Tennessee and their state legislature.”
McNally’s stance, however, runs counter to the view of some Republicans in leadership.
Sen. Ken Yager, chairman of the Senate Republican Caucus, acknowledged he wasn’t fully educated on the doctrine but noted he would be leery of “any effort to diminish the role of state courts.”
“That is a basic principle. … I’d look on that with great scrutiny. You don’t want to diminish our state court system,” said Yager, of Kingston in East Tennessee.
Democrats, even though they could benefit from the doctrine if they were ever to regain power, raised concerns about the potential for a Supreme Court ruling in favor of the doctrine.
State Sen. Heidi Campbell called the idea a “dangerous interpretation” of law that enables legislatures to influence elections without checks and balances.
“While it may seem advantageous in this moment to those who maintain a supermajority, surely those in control would be strongly opposed to giving such power to the opposing party should control change in the future,” said Campbell, a Nashville Democrat who is running for the 5th Congressional District seat. “In my opinion, the independent state legislature doctrine is unconstitutional, as it would grant a level of supremacy to the legislature that would undermine the equipoise fundamental to our tripartite democratic system.”
Rep. Darren Jernigan, an Old Hickory Democrat, agreed that lawmakers in Republican supermajorities need to be careful what they ask for.
“If you’re in California, you might not like it,” Jernigan said.
Some analyses show such a move would give legislatures the ability to pass voter suppression laws, as well.
Democrats contend Republicans in Tennessee already have passed numerous laws designed to quell voter turnout, even though the state has one of the lowest participation rates in the nation.
The North Carolina Supreme Court stopped Republicans’ redistricting map from taking effect in February, finding that it had gerrymandered the districts.
The case was sent to the state trial court, which ordered the legislature to adopt a congressional map proposed by court-appointed experts.
North Carolina House Speaker Timothy Moore filed an emergency application asking the high court to hold up the North Carolina Supreme Court’s order, but justices denied the request.
In dissent, Alito, Thomas and Gorsuch said the independent state legislature doctrine is “an exceptionally important and recurring question of constitutional law” and noted it needed to be reviewed. Kavanaugh was among the justices who denied Moore’s request but said the court should grant certiorari and hear the case in its next term.
The court needs only four votes to agree to review a case.
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