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House considers potential election fallout of upcoming Supreme Court case

Congress could act to require state judicial review of state constitutional law provisions about elections, witness says

House Administration Committee Chair Zoe Lofgren, D-Calif., is seen before a meeting of the House Democratic Caucus in July.
House Administration Committee Chair Zoe Lofgren, D-Calif., is seen before a meeting of the House Democratic Caucus in July. (Tom Williams/CQ Roll Call)

Congress has the ability to address the central issue in an upcoming Supreme Court case that could reshape federal elections, witnesses told the House Administration Committee on Thursday.

In the case, Moore v. Harper, the North Carolina legislature appealed a state supreme court ruling that tossed a congressional map as an unconstitutional partisan gerrymander. The Supreme Court agreed to decide the case next term, which starts in October and ends at the end of June.

State legislators argue in the case that the state court overstepped its authority under the federal Constitution, and witnesses before the House panel said the Supreme Court could use the case to open up almost any state or local election decision for federal court review.

“To be blunt, it would be extraordinarily destabilizing,” Carolyn Shapiro, law professor at the Chicago-Kent College of Law, told the committee of one possible outcome.

Shapiro said embracing a version of the theory undergirding the case, the “independent state legislature” theory, would undercut the entire system of local election officials and leave state legislatures in charge of election rules, with disputes playing out in federal courts.

Shapiro said Congress had a few levers to pass laws ensuring that state courts still have the power to check state legislatures, including passing federal legislation that incorporates state judicial review of state constitutional law provisions.

“There’s nothing in the Constitution to suggest that the federal government can’t ensure that states operate the federal elections properly, but it is Congress that has that power, not the federal courts taking it away from state courts,” Shapiro said.

Democrats on the House panel tied the case to former President Donald Trump’s effort to overturn his election loss in 2020. Committee Chairperson Rep. Zoe Lofgren, D-Calif., argued that some Republicans have latched onto the theory as a means to overturn the will of the voters.

“The theory is not grounded in history precedent, or logic, but it has gained an increasing following in some sectors of America over the past 20 years,” Lofgren said. “But make no mistake, for many supporters the independent state legislature theory is part of a broader plan to seize control of elections.”

Committee ranking member Rep. Rodney Davis, R-Ill., pushed back on that argument, calling it “an excuse to cover their favorite topic, President Trump and the 2020 election.” Davis said he plans to introduce a bill he called the American Confidence in Elections Act, which would include model state elections legislation and support for nationwide voter ID requirements.

“Our driving principle is that every eligible American should have the opportunity to vote, and that their ballot should be counted according to law,” Davis said.

Davis said Republicans would pursue that bill if they gain the House next year, including implementing voter ID requirements in the District of Columbia.

The independent state legislature theory stems from the Constitution’s Elections Clause, which states that state legislatures determine the “The Times, Places and Manner,” of federal elections.

“The Constitution thus grants the state ‘Legislature’ primacy in setting the rules for federal elections, subject to check only by Congress,” not the courts, the North Carolina legislature argued in a Supreme Court filing.

Originally, the North Carolina state legislature sought an emergency stay of the order that required the state to redraw its congressional map. There, a majority of the justices ruled against a stay, but Justices Samuel A. Alito Jr., Clarence Thomas and Neil M. Gorsuch dissented.

Alito argued in favor of some version of the independent state legislature theory in the dissent.

“[I]f the language of the Elections Clause is taken seriously, there must be some limit on the authority of state courts to countermand actions taken by state legislatures when they are prescribing rules for the conduct of federal elections,” Alito wrote in the dissent.

Trump allies, particularly lawyer John Eastman, advanced a version of the independent state legislature theory as part of the monthslong pressure campaign to overturn his loss in several states. Eastman testified to Georgia legislators they had a “lawful authority and ‘duty’” to replace electors for President Joe Biden in the state.

Eliza Sweren-Becker, counsel for the Brennan Center for Justice program, testified Thursday that the theory could not be used to justify efforts to send alternate electors to Congress, but it was used to undercut decisions by state courts and secretaries of state to adjust voting due to the coronavirus pandemic.

“To be clear, the independent state legislature claim is not a license to coup. Federal law prohibits state legislatures from overturning the results of elections,” she said. “But the notion would open the door to anti-democratic shenanigans and even failed efforts to manipulate our elections, erode trust and, ultimately, participation in our democracy.”

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