By A Supreme Court term that began with dread among voting rights advocates that the justices could upend the rules governing elections is ending with relief and surprise that they have opted instead to largely uphold the status quo.
Three weeks ago, the conservative-led court astonished observers with a ruling in an Alabama case that upheld its interpretation of the Voting Rights Act. On Monday, it cited that decision in lifting a hold on a Louisiana redistricting case, raising the prospect that the state would have to draw another congressional district where Black voters have an opportunity to elect a candidate of their choice.
And on Tuesday, it rejected the most extreme version of a novel legal theory that could have prevented state supreme courts from exercising oversight of state lawmakers’ handling of redistricting, voter ID and other policies for federal elections. Voting rights advocates welcomed the ruling, saying it reduces — while not eliminating — the opportunities for losing candidates to inject confusion into the 2024 election by appealing to state legislatures, judges or Congress for help overturning the results.
Richard Hasen, a UCLA law professor and director of the Safeguarding Democracy Project, was among those who expressed surprise at the court’s decisions on election matters this term. Voting rights didn’t make gains so much as prevent setbacks, he said.
“Preserving the status quo on this Supreme Court is a win,” he said, referring to this month’s Alabama decision. “This is a court that is not friendly to voting rights, but it’s also a court that is not going to adopt the most radical theories that would subvert democracy.”
Tuesday’s case came out of North Carolina, where the state Supreme Court initially struck down election maps drawn by Republican lawmakers as overly partisan. The GOP lawmakers asked the U.S. Supreme Court to adopt what is known as the independent state legislature theory and rule that the state justices lacked the power to consider the maps because the U.S. Constitution says election issues should be left to legislatures.
The 6-3 majority rejected that argument, finding that state courts have a role to play in election disputes. The lawsuit was brought by North Carolina voters backed by voting rights groups against Republicans who control the legislature. Those opposing the GOP lawmakers’ theory won support from the Biden administration as well as from retired Republican judges, the chief justices of the nation’s state supreme courts and the co-founder of the conservative Federalist Society.
But the court majority left the option for federal courts to review decisions from state courts in certain circumstances when it comes to election policies. It didn’t spell out when federal courts could get involved, and that question is sure to be tested in the years to come.
“The worst scenario was averted,” Hasen said. “The court did not adopt the view that state legislatures are this free-floating body that can engage in the most egregious forms of voter suppression and be unconstrained by state constitutions and state courts. So that’s the good news. … The bad news is that the court has reserved for itself and for federal courts a power to second-guess state court decisions.”
The decision comes as former president Donald Trump mounts a new campaign and continues to promote lies about the 2020 election. After he lost, his supporters in some states that Joe Biden won claimed to be the true electors and submitted official-looking paperwork to federal officials while lobbying state legislatures to undermine the certified results. Democracy experts said the moves weakened the country’s commitment to fair elections and prosecutors are now investigating the Trump electors’ activities.
David Becker, executive director of the Washington-based Center for Election Innovation and Research, called Tuesday’s decision important because it ensures state courts have the power to prevent attempts to improperly interfere with elections.
“What this decision makes clear is the theory that was embraced by election deniers and those seeking to overturn the 2020 election — and in some cases the 2022 election as well — will not stand,” he said. “That is not where this court is going to go. The court is going to apply the same standards that have been applied for nearly 250 years.”
The justices expressed skepticism of the independent state legislature theory during oral arguments in December. Many court watchers suspected the justices would dismiss the case without addressing the merits, but a majority opted to issue an emphatic ruling on the theory, even if it left some matters unresolved.
“It could have been a lot worse,” said Joshua Douglas, a University of Kentucky election law professor. “But I think the story is yet to be told in terms of how this will impact the 2024 election and beyond.”
At the start of the term, Douglas and others believed the justices were preparing to issue rulings that could overturn decades of precedent governing how political districts are drawn.
“It’s a little bit strange to be breathing a sigh of relief that they didn’t go to be the most extreme form of these possible arguments,” Douglas said. “The very fact that we all thought they would demonstrates both how under-protective the Supreme Court has been when it comes to the right to vote and how totally extreme these theories were.”
Jason Snead, the executive director of the conservative Honest Elections Project, said he had hoped the Supreme Court would embrace the independent state legislature theory but saw Tuesday’s ruling in a positive light. The decision will give conservatives a chance to get federal judges to review state court decisions on election policies that they believe are wrong, he said.
“There’s a lot of cheering going on from a lot of the folks that bring those lawsuits,” he said, referring to Democratic groups and voting rights advocates. “I think that they might be missing the forest for the trees when they see that there’s actually now a great chance that cases are going to get reviewed in federal courts.”
The Supreme Court was clear in saying there is a limit to what state courts can do, he said.
“We just don’t know exactly what the test is going to be yet,” he said. “I’m sure that both sides, the left and the right, will be probing that boundary, trying to figure out what state courts can do and how far is too far. So this issue is far from decided.”
In Arizona, some Republican state lawmakers said the decision would not deter how they approach the 2024 election.
“It seemed like it was, ultimately, nuanced, and I think that you’re still going to see states thread the needle in different ways because it wasn’t like an absolute decision,” said Arizona state Sen. T.J. Shope (R). “There’s not really in a general sense anything different today than yesterday. We’re still going to go ahead, and the envelope is going to be pushed because an envelope wasn’t defined.”
Arizona state Rep. Alexander Kolodin (R) argued that the high court left state legislatures “a lot of space to work with.” Kolodin, an attorney, is representing some of Arizona’s Trump electors.
Vikram Amar, the dean of the University of Illinois College of Law, said the court had repudiated the independent state legislature theory and expressed skepticism about how often litigants could get federal courts to take up election matters decided by state courts.
“Some people will try to bring cases to exploit the residual opening the court left, but I think that’s the tail, not the dog,” said Amar, who has written extensively about the theory.
“I don’t think there’s that much room to do stuff in defiance of what state court wants,” he said. “I’d be very surprised if the Supreme Court in 2024 takes a case to repudiate what a state court is doing. A lot of the same people who are pointing to this residual possibility, they are the same people who said the Supreme Court would accept the independent legislature theory.”
The decision is significant, especially for what it portends for the next presidential election, he said.
“Had this case come out the other way, the elected legislatures could have tried to take away from the people the power to pick electors to the electoral college,” he said. “Similarly, had the decision come out the other way, state legislatures may have tried to take away from state courts the power to resolve election disputes. This is really important in 2024 when you think about states like Arizona or Wisconsin that went for Biden but have Republican state legislatures.”
Wingett Sanchez reported from Phoenix. Robert Barnes in Washington contributed to this report.