Republicans in Pennsylvania and North Carolina attempted to challenge redistricting plans in their states using the "independent legislature" theory that originated from the 2000 presidential election recount in Florida, Politico reports.
Although the Supreme Court rejected the cases this week mostly on procedural grounds, several of the justices signaled their support for the theory to some extent, which could provide legislators with more authority over elections in their states and limits the ability of state courts to check this power.
"There’s a lot of potential for nuance here," said Rick Hasen, an expert in election law who teaches at the University of California, Irvine, School of Law. "Even if you had a majority of justices that agreed that there’s something to this theory, they might not agree that a particular state has violated it."
He also said if they adopted "the most maximalist position, it would be an earthquake in American electoral power."
Supreme Court Associate Justice Samuel Alito, in his dissent to the decision on North Carolina’s redistricting, wrote that the Elections Clause "could have said that these rules are to be prescribed 'by each State,' which would have left it up to each State to decide which branch, component, or officer of the state government should exercise that power, as States are generally free to allocate state power as they choose. But that is not what the Elections Clause says. Its language specifies a particular organ of a state government, and we must take that language seriously."
Alito was joined in his dissent by Associate Justices Clarence Thomas and Neil Gorsuch. Cameron Kistler, an attorney at the nonpartisan, nonprofit Protect Democracy, told Politico that "the main votes that everyone is watching are" Chief Justice John Roberts and Associate Justices Amy Coney Barrett and Brett Kavanaugh.
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