WASHINGTON (AP) — The Supreme Court seems poised to take on a new elections case being pressed by Republicans that could increase the power of state lawmakers over races for Congress and the presidency, as well as redistricting, and cut state courts out of the equation.
The issue has arisen repeatedly in cases from North Carolina and Pennsylvania, where Democratic majorities on the states’ highest courts have invoked voting protections in their state constitutions to frustrate the plans of Republican-dominated legislatures.
Already, four conservative Supreme Court justices have noted their interest in deciding whether state courts, finding violations of their state constitutions, can order changes to federal elections and the once-a-decade redrawing of congressional districts.
The Supreme Court has never invoked what is known as the independent state legislature doctrine, although three justices advanced it in the Bush v. Gore case that settled the 2000 presidential election.
“The issue is almost certain to keep arising until the Court definitively resolves it,” Justice Brett Kavanaugh wrote in March.
It only takes four of the nine justices to agree to hear a case. A majority of five is needed for an eventual decision.
Many election law experts are alarmed by the prospect that the justices might seek to reduce state courts’ powers over elections.
“A ruling endorsing a strong or muscular reading of the independent state legislature theory would potentially give state legislatures even more power to curtail voting rights and provide a pathway for litigation to subvert the election outcomes expressing the will of the people,” law professor Richard Hasen wrote in an email.
But if the justices are going to get involved, Hasen said, “it does make sense for the Court to do it outside the context of an election with national implications.”
The court could say this week or next whether it will hear an appeal filed by North Carolina Republicans. The appeal challenges a state court ruling that threw out the congressional districts drawn by the General Assembly that made GOP candidates likely victors in 10 of the state’s 14 congressional districts.
The North Carolina Supreme Court held that the boundaries violated state constitution provisions protecting free elections and freedoms of speech and association by handicapping voters who support Democrats.
The new map that eventually emerged and is being used this year gives Democrats a good chance to win six seats, and possibly a seventh in a new toss-up district.
Pennsylvania’s top court also selected a map that Republicans say probably will lead to the election of more Democrats, as the two parties battle for control of the U.S. House in the midterm elections in November. An appeal from Pennsylvania also is waiting, if the court for some reason passes on the North Carolina case.
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