Publish Date:June 30, 2023

News Roundup: The Supreme Court, Partisan Election Control, and U.S. Democracy

Amid a string of momentous decisions this week — ending affirmative action in college admissions, striking down President Biden’s student loan forgiveness program, siding with a religious postal worker, and limiting LGBTQ anti-discrimination protections — the U.S. Supreme Court this week also rejected a dangerously legal theory that would have upended American democracy.

The fringe theory, known as the independent state legislature theory, is based on a radical interpretation of the U.S. Constitution’s Elections Clause that in recent years has been elevated by far-right election deniers and partisan actors seeking new ways to tilt the elector playing field.

The case before the Supreme Court, Moore v. Harper, centered on redistricting in North Carolina, where Republican lawmakers invoked the theory to argue that the state supreme court had no authority to strike down illegally gerrymandered congressional maps.
Trump allies and election deniers had also used the theory to justify their attempts to overturn the results of the 2020 election, arguing that certain measures expanding voting access that year were illegitimate — and that state legislatures could unilaterally reverse outcomes, including by appointing fake electors.
In April, a new conservative majority on the North Carolina supreme court overturned its past ruling, clearing the way for a new round of partisan gerrymandering and leading to some expectations that the U.S. Supreme Court would drop the case.
But in a 6–3 ruling, the court rejected the theory and reaffirmed that state legislatures do not have unchecked power to set election rules and that they are still subject to judicial review. One of the three justices who dissented was Clarence Thomas, who refused to recuse himself from the case despite his wife Ginni Thomas’ support of efforts to overturn 2020.

The decision was a victory for democracy, but as many experts have pointed out, it still leaves the door open for future election-related challenges in federal court and it didn’t define a standard for when state courts might have “transgress[ed] the ordinary bounds of judicial review.” And conservative state legislatures are still home to efforts to exert greater partisan control over election administration.

“In pockets around the country,” CNN reported this week, “Republican officials are working to change who oversees elections in ways that critics say could shift the balance of power to their party or lead to partisan stalemates when high-stakes Senate and presidential contests are on the ballot next year.”
“The moves range from requiring legislative approval of court settlements in election-related lawsuits to creating paths for taking over local election offices,” reported the Associated Press, highlighting recent measures in North Carolina and Texas in particular.
We’ve been investigating the efforts of activists and partisan lawmakers to consolidate election administration power, and have obtained documents revealing more about the influence networks behind right-wing election bills. We’ve also unearthed emails related to the restructuring of local elections boards in Georgia — read more about our investigations here.

American Oversight

News Roundup: The Supreme Court, Partisan Election Control, and U.S. Democracy

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