GOP pushes for an ‘earthquake in American electoral power’

By | March 9, 2022

Politico reports:

A legal argument lurking in two Supreme Court cases could give Republican legislators in battleground states sweeping control over election procedures, with ramifications that could include power over how states select presidential electors.

Republicans from Pennsylvania and North Carolina challenged court-ordered redistricting plans in their states based on the “independent legislature” theory. It’s a reading of the Constitution, stemming from the 2000 election recount in Florida, that argues legislators have ultimate power over elections in their states and that state courts have a limited ability — or even none at all — to check it.

The Supreme Court turned away the GOP redistricting challenges on Monday, largely on procedural grounds. But at least four justices embraced the “independent legislature” theory to some degree, which would consolidate power over election administration in key states with GOP-dominated state legislatures, from the ability to draw district lines unchallenged to passing new restrictions on voting. Taken to its extreme, some proponents of the theory argue it would give legislators power to override the choice of presidential electors after voting in their states.

Even if five justices signed on to a version of the independent legislature theory, it is unclear how far reaching a ruling will be, said Rick Hasen, an election law expert at the University of California, Irvine School of Law who does not support the theory. “There’s a lot of potential for nuance here,” he said. “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.”

But if they took “the most maximalist position, it would be an earthquake in American electoral power,” Hasen said before Monday’s decision.

And since the Court declined to overturn the redistricting maps for other reasons, the theory is still waiting for a full test of just how far it could go ahead of the 2024 election. [Continue reading…]

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