A forthcoming academic paper from law professors Leah Litman and Kate Shaw details how ISLT, in its strict elevation of state legislatures over other branches of state government, “is fatally inconsistent with basic precepts of both federalism and the separation of powers.” The claim of ISLT that only state legislatures can determine federal election processes would break Supreme Court precedent, where the term “legislature” has been determined to refer more broadly to individuals or bodies in state government that have some part of lawmaking power. In 2018, Li told Sludge, “It’s important to have a check and balance in the process because state legislatures often are prone to be captured by special interests, especially when it comes to something like redistricting that your average member doesn’t understand and maybe never has done before-since it takes place only once every 10 years.” ![]() In January, courts in Alabama and Ohio struck down maps that unfairly benefited Republican politicians, in addition to the cases in Pennsylvania and North Carolina. This year, courts in Maryland and New York threw out district maps drawn by Democrats as gerrymandered. State courts have been one of the true bright spots in the fight against partisan gerrymandering this redistricting cycle, striking down both GOP & Democratic gerrymanders.īut with the North Carolina ISLT case, the Supreme Court could be about to curtail that power.- Michael Li 李之樸 June 30, 2022 In an alarmed response to the Supreme Court’s announcement that it would hear the case, Michael Li, the Brennan Center’s senior counsel in the Democracy Program, wrote on Twitter that state courts have recently served as a bulwark against partisan gerrymandering in states where both Democrats and Republicans control the legislatures. It could also protect their laws related to things like voter registration and identification from judicial review. Constitution’s Elections and Electors Clauses that would give state legislatures wide authority to gerrymander electoral maps, pass voter suppression laws, and, at the most extreme, overturn elections.” The conservative majority on the Supreme Court could hand to state legislatures total control over which Electoral College electors it approves, with no checks from the state executive or judicial branches. ![]() Harper case rests on what’s called the independent state legislature theory (ISLT), described by the nonpartisan Brennan Center for Justice as a “radical and unprecedented approach to the U.S. Chapman, referring it to a district court, but left open the possibility that they could pick up the case on appeal. On March 7, the Supreme Court declined to hear the Pennsylvania case, Toth v. Tom Wolf’s veto of district maps that came out of the Republican-controlled state legislature. The case parallels one brought to the Supreme Court in late February by Pennsylvania Republicans arguing against Democratic Gov. ![]() Constitution gives state legislatures the sole authority to set the “Times, Places, and Manner” of holding elections for the U.S. The North Carolina Republicans, led by House Speaker Tim Moore, argue that the U.S. Harper, has been brought by Republicans in the North Carolina legislature, who are appealing a congressional district map for the state that was drawn earlier this year by the North Carolina Supreme Court after it determined the map drawn by the legislature unfairly benefited Republicans. The Supreme Court agreed to hear a case next term that could give state legislators vast new powers over congressional and presidential elections, potentially allowing them to directly appoint Electoral College electors.
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