The Supreme Court Just Came Perilously Close to Blowing Up Federal Elections
SlateThe Supreme Court will not overturn a century of pro-democracy precedent and two centuries of historical practice to give state legislatures unlimited power over elections—yet. The court refused to block new congressional maps drawn by the high court of each state, declining—for now—to embrace a radical theory rejecting state courts’ authority over election law. But conservative scholars have devised a theory known as the “independent state legislature doctrine” that would give legislatures complete control over elections, including voting rules and redistricting. Alito, joined by Thomas and Gorsuch, dissented, declaring that the North Carolina Supreme Court had likely violated the elections clause by striking down the legislature’s congressional map. And he dismissed the North Carolina Supreme Court’s decision as mere “legislation”—even though the majority engaged in an exhaustive overview of the state constitution’s guarantee that “all elections shall be free.” “This guarantee of ‘free elections’ dates all the way back to the North Carolina Constitution of 1776,” Alito wrote, “but for 246 years that language was not found to prohibit partisan gerrymandering.” Implying that the court’s Democratic majority was motivated by politics rather than law, he fumed: “Only this year did the State Supreme Court change course and discern in the State Constitution a judicially enforceable prohibition of partisan gerrymandering.” Alito also complained that the North Carolina Supreme Court cited state constitutional guarantees of free speech, assembly, and association, which “make no reference to elections.” Unmentioned is the glaring fact that the First Amendment does not mention elections either, yet Alito has repeatedly used it to strike down election regulations.