Professor’s warnings cited in Supreme Court election case

A local law professor not only has some thoughts about a recent U.S. Supreme Court decision regarding how federal elections are conducted — he also contributed to it.

Jason Marisam, a professor at Mitchell Hamline School of Law, published an article in February for the Michigan State Law Review titled, “The Dangerous Independent State Legislature Theory.” The article aimed to shine a light on the flaws and dangers of that theory, which posits that the U.S. Constitution delegates authority to regulate federal elections within a state to that state’s elected lawmakers without any checks and balances from state courts, governors or other bodies with legislative power.

The Moore v. Harper decision, handed down late last month, ruled that North Carolina’s top court did not overstep its bounds in striking down a congressional districting plan as excessively partisan under state law. Justices turned away the broadest view of a case that could have left state legislatures almost unchecked by their state courts when dealing with federal elections.

“The court rejected the most extreme version of independent state legislature theory,” Marisam said. “If it had accepted that theory, it could have caused some serious problems. Crisis averted, but there’s still a lot of uncertainty. The decision essentially said, There are limits to what state courts can do, but we’re not going to say what they are.”

Marisam’s piece was cited in three briefs filed in the case. One was filed by a bipartisan group of former public officials, former judges and election experts from Pennsylvania; another by the Lawyers’ Committee for Civil Rights under Law, along with 14 additional organizations; and a third by former Republican elected and executive branch officials. All three briefs opposed the idea of the independent state legislature theory.

A primary argument of the article was on behalf of voting rights remaining protected by both federal and state constitutions.

“We think of our civil rights, such as voting rights, as having dual constitutional protection, at the federal and state levels,” said Marisam. “What the independent state legislature theory would do at its strongest would erase state constitutions from the equation, leaving voting rights with just federal constitutional protection.”

But the Moore decision left open the possibility that state courts could be a forum to check a partisan gerrymander. “They declined to say that state court review isn’t an option,” said Marisam.

The idea of who can police redistricting efforts is already complicated. In Rucho v. Common Cause four years ago, the U.S. Supreme Court ruled that while partisan gerrymandering may be “incompatible with democratic principles,” federal courts cannot review such allegations.

“That leads to the question, What about state courts?” said Marisam. “Can they step in when the legislature draws its congressional districts in a way that violates state constitutional rights?”

Even in Minnesota, where voting rights are relatively secure, adopting independent state legislature theory would likely mean having to redraw congressional maps.

“For decades, when it came time to draw congressional maps after a census, you had divided government,” Marisam said. “The legislature hasn’t been able to enact maps with different parties in control of the government. So we had our courts come in to help out. If the Supreme Court had adopted this extreme version of the theory, we would have to rethink our whole process.”

Wisconsin, in contrast, is already a powder keg of voting gamesmanship. If that state’s Republican-controlled legislature enacts new voting restrictions in time for 2024 when it’s likely to be a major state in the presidential election, Democrats logically would go to the state supreme court and ask it to say that any new restrictions violate the state constitutional guarantee of voting rights.

“Is that allowed? We’d have a state supreme court enjoining a state election rule,” said Marisam. “It’s not clear whether that would be allowed under Moore v. Harper. So, it’s still an open question of how far this theory goes.”

Other redistricting cases from Ohio and New York are pending. The Ohio high court said in late June that it will again review the legality of the state’s congressional districts in the wake of Moore.

“The Ohio case could still affect the 2024 election for Congress,” said Marisam. “The politics are tricky, but if the North Carolina court had adopted the theory, it could affect legislation in both Ohio and New York. It would mean that state courts couldn’t do anything about reviewing what legislatures do around voting rights in federal elections, whether it’s maps or voting rules.