WASHINGTON, March 2 (Reuters) – Republicans challenging court-drawn maps of congressional districts in North Carolina and Pennsylvania have asked the conservative-majority U.S. Supreme Court to adopt an esoteric legal theory that could empower politicians much greater power over elections.
The cases, filed using the court’s emergency “shadow case” that can allow it to move quickly and without the public deliberation that is a staple of major cases, seek to advance the “doctrine of independent state legislature,” a little-known legal theory that could limit the ability of state courts to impose new maps.
Conservative 6-3 majority court is considering Republican emergency requests to block lower court rulings that approved electoral maps for U.S. House of Representatives races replacing those drawn by Republican-led legislatures in both states, where primary elections are held in May. 17. The court, which has shown itself to be increasingly firm in dealing with contentious cases, could act in a few days.
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In the case of North Carolina in particular, Republican challengers are foregrounding the theory that the US Constitution gives state legislatures, and not other entities such as state courts, the power to rule. establish rules governing elections, including the drawing of district lines.
“They are very aggressive because they claim that legislatures when engaged in redistricting Congress are essentially immune to all state laws,” said Paul Smith, senior vice president of the Campaign. Legal Center, a nonpartisan voting rights organization.
Critics say the doctrine of an independent state legislature flouts democratic principles because it could limit the courts’ ability to block electoral districts designed to entrench a political party in power, known as gerrymandering.
The doctrine could also thwart challenges on issues like voter ID, mail-in ballots and ballot boxes, which Republicans have sought to restrict in a number of states, and consider lawsuits. that arise in the heat of the moment.
“It’s dangerous because state politicians are the people most interested in making the rules of the game to help themselves and their side continue to win,” said voting rights expert Josh Douglas. University of Kentucky Rosenberg School of Law.
In most states, lawmakers control the process of redrawing their congressional maps every 10 years after the US census. In 2019, the Supreme Court said federal courts were powerless to intervene to prevent partisan gerrymandering.
Republicans only need to flip a handful of seats in November’s midterm elections to regain control of the US House and stymie much of Democratic President Joe Biden’s legislative agenda.
The doctrine, which is gaining traction in conservative legal circles, is based in part on the wording of the U.S. Constitution that “the times, places, and manner ‘of federal elections’ shall be prescribed in each state by the legislature of that state. -this”.
Republican challengers are pushing the theory at a time when the Supreme Court seems more receptive.
Four of the court’s conservative justices appeared to lend weight to the argument during the flurry of litigation surrounding the 2020 election, when Republican lawmakers or officials sought to block court rulings demanding changes to deadlines and electoral rules, to take account of the coronavirus pandemic.
For example, in a Wisconsin case last October, Judge Brett Kavanaugh wrote in an opinion that “state courts don’t have a blank check to rewrite state election laws for federal elections.”
Kavanaugh is one of three conservative justices appointed by former Republican President Donald Trump, who continued to falsely claim his election loss to Biden was the result of fraud, inspiring a wave of new restrictions on voting in Republican-led states.
The North Carolina dispute centers on a state Supreme Court ruling last month that struck down Congress’ map of the Republican-dominated legislature as a violation of the state constitution.
The move came amid two lawsuits brought by plaintiffs, including Democratic voters and an environmental group, claiming the map was skewed in favor of Republicans. A lower court then adopted a relief map drawn by a bipartisan panel of experts.
Republican state lawmakers have urged the U.S. Supreme Court to intervene, saying the federal Constitution “does not give state courts, or any other branch of state government, the power to question the decisions of the legislature”.
In Pennsylvania, the state Supreme Court approved a new congressional map last month after Democratic Gov. Tom Wolf vetoed one drawn by the Republican-dominated legislature, saying it gave an unfair advantage to republicans.
Republicans, including one who is running for office, then filed a lawsuit to block the new map and turned to the US Supreme Court when their efforts failed, saying the state court did not had “no authority to impose a Congressional card” unless authorized by the Legislature.
Their lawyer, Jonathan Mitchell, told Reuters his argument was not as broad as that advanced in the North Carolina case, as he admits the courts can intervene when a map enacted by law violates the State or federal constitution.
“The problem is that the [Pennsylvania] court acted to impose a card of its choosing, not to remedy a federal or state constitutional violation,” he said.
In another redistricting case on a different legal issue, the court last month allowed Alabama to use a Republican-backed map, signaling further weakening of the voting rights law enacted to protect minority voters.
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Reporting by Andrew Chung and Lawrence Hurley; Editing by Scott Malone and Mark Porter
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