Supreme Court considers state lawmakers’ authority over voting rules

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• Judy Woodruff:

  The U.S. Supreme Court today heard arguments in a case that could have far-reaching effects and dramatically reshape the country's elections.

  John Yang explains.

• John Yang:

  Judy, this case hinges on the interpretation of these 22 words in the Constitution: "The times, places and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof."

  Now, does that mean only state lawmakers can regulate elections, including drawing congressional districts, however they want to, without state courts reviewing their decisions? Or should the term legislature be read broadly to mean the entire apparatus of state government, including state courts interpreting state constitutions?

  Justices wrestled with this case for nearly three hours today, twice the allotted time.

  Marcia Coyle is chief Washington correspondent for "The National Law Journal." And Nate Persily is an election law scholar at Stanford University.

  Mr. Persily, this — the immediate case here is about redistricting in North Carolina. The state court sent the lawmakers back to the drawing board twice. And even the second stab, they said, was a pro-Republican gerrymander. And so they had a panel of experts draw up their own map, the court's own map, for use in last month's elections.

  What about the future? What are the consequences if the court adopts this theory, which is called the independent state legislature theory?

• Nate Persily, Stanford Law School:

  Well, they could issue a narrow ruling or they could issue a broad ruling.

  In its narrowest, the court would say that state constitutions really cannot constrain state legislatures, so that a state judge, whether it's at the state Supreme Court or a trial court judge, would not be able to use the state's constitution to prevent partisan gerrymandering.

  But there could be broader interpretations as well, because, as you mentioned, this clause does not — it's not a gerrymandering clause. It's a clause about elections, congressional elections. And so this could potentially prevent state courts from applying state constitutional provisions that apply to all of the electoral system, absentee voting, primary elections, anything that could be interpreted as the time, place and manner of congressional elections.

• John Yang:

  And isn't this theory what President Trump's lawyers used to argue about keeping Donald Trump in the White House after the 2020 elections?

• Nate Persily:

  Well, that's right. That's not this particular clause. There's a separate clause in Article 2 that relates to presidential electors and the power of a state legislature to appoint them.

  So, if you really believe that the state legislature is independent, and is not subject, say, to state judicial review under a state's constitution, that would apply to the state's choice of electors as well, which would be given solely to the state legislature.

• John Yang:

  Marcia, you were in the courtroom today for these three hours of arguments.

  Marcia Coyle, "The National Law Journal": Yes.

• John Yang:

  Now, there was a lot of skepticism from the liberal justices about this.

  Here's Justice Elena Kagan.

• Elena Kagan, U.S. Supreme Court Associate Justice:

  When we think about this word legislature, we're thinking about it as embed in a system of constraints. And one of those constraints is the governor. And another of those constraints is the courts.

  And that's the normal way that legislatures operate and act is as subject, not as absolute, but as subject to constraints.

• John Yang:

  What's the significance of that?

• Marcia Coyle:

  This is very important.

  Justice Kagan — and, also, this concern was echoed by Justice Sotomayor and Justice Jackson. They're — as Justice Kagan further explained, under this theory that the Republican leaders of the North Carolina legislature are pushing, Justice Kagan said the theory would get rid of checks and balances, the normal checks and balances that we see operating in government today, and she said that are critically needed right now more than ever.

  So, that concern continued to play in her questioning, as well as the other justices. In fact, Justice Jackson made a point that she had a hard time, she said, wrapping her mind around the fact, well, state constitutions are the source of authority for state legislatures. And, here, state legislatures, under this theory, are saying, we can violate the state constitution.

• John Yang:

  Now, for the conservative majority, originalism is very important to them, the history and tradition of the laws.

  Today, there was even a question about — from Justice Alito about the meaning of fair elections in the North Carolina Constitution in this exchange with Donald Verrilli, who was arguing for the North Carolina election officials.

• Donald Verrilli, Former U.S. Solicitor General:

  I guess the point is that what is this free elections clause trying to get out in the North Carolina Constitution and the other constitutions that adopted it at the time of the framing?

• Samuel Alito, U.S. Supreme Court Associate Justice:

  All right, 1776, 200-plus years ago, was anybody at that time saying election isn't free if there's political gerrymandering?

• John Yang:

  Where else did this argument come up today?

• Marcia Coyle:

  This case very much involves what at least four justices are committed to, originalism.

  And they look at constitutional questions through the lens of text, history and tradition. And so the supporters of this theory believe that history is on their side, whereas the opponents of the theory believe that history is on their side.

  And I would have to say that the weight of history, if you do respect American historians, and they filed numerous briefs in this case, the weight of history is really on the opposite side of the North Carolina Republican lawmakers.

  Mr. Verrilli was talking about the free election clause in the North Carolina Constitution. And those clauses, really, 30 states, I believe — and the professor can correct me if I'm wrong — have those free election clauses. Many of them were adopted in the late 18th century, early 19th century, and, today, they're viewed as requiring fair elections and the fair administration of elections.

  Justice Alito's comments seem to suggest, well, he was skeptical that, when they were adopted, and even earlier, that anybody had in mind partisan gerrymandering.

• John Yang:

  Nate Persily, would those parts of those state constitutions go away if the Supreme Court adopted this reasoning, this theory?

• Nate Persily:

  Well, they wouldn't apply to federal elections. They might still apply to state elections.

  But the idea of the independent state legislature doctrine is that the legislatures are independent, and that these state constitutional provisions related to elections couldn't be applied to them by the state supreme courts.

  I really want to emphasize how sort of radical this idea is. I mean, when sort of in high school civics we learn about federalism, we learn about separation of powers and checks and balances, this rips all of that away. You're going to have potentially the U.S. Supreme Court telling a state supreme court what it's able to do, and it's going to basically unmoor these state legislatures from their state constitutions.

• John Yang:

  And, Marcia, who seemed to be the strongest proponents of this idea of the independent state legislature theory?

• Marcia Coyle:

  On the court?

• John Yang:

  On the court.

• Marcia Coyle:

  Well, it's hard to say who was strongest. I would say that most sympathetic appeared to be Justices Alito, Thomas and Gorsuch.

  And then, as I mentioned earlier, the ones with the greatest skepticism and concern were Kagan, Sotomayor, and Jackson. Now, that sort of leaves the chief justice and Justices Kavanaugh and Amy Coney Barrett, who really didn't tip their hands either way. They both — all three of them made comments that might lead you to believe that they could go either way.

  So we're just going to have to wait and see. But I think those three justices may well hold the key to the fate of this theory, which, as the professor said, is really considered revolutionary.

• John Yang:

  Marcia Coyle of "The National Law Journal," Nate Persily of Stanford Law School, thank you very much.

• Marcia Coyle:

  Pleasure, John.

• Nate Persily:

  Thank you.