SCOTUS decision: a big whew! by Marjorie Arons-Barron

The entry below is being cross posted from Marjorie Arons-Barron’s own blog.

The U.S. Supreme Court ruled against GOP legislators in North Carolina, who had claimed that they should have unreviewable powers to set the rules for their state’s federal elections. The six-to-three decision (with Clarence Thomas, Neil Gorsuch and Samuel Alito dissenting) affirms our fundamental principle of checks and balances.

This decision has implications far beyond the Tar Heel State and arguably beyond just voting rights. A different decision, according to NYU’s Brennan Center for Justice, would have disrupted more than 170 state constitution provisions, over 650 state laws and thousands of regulations, down to the location of polling places. As conservative retired jurist Michael Luttig, who opposed the GOP challenge, wrote, this is “the single most important case for American democracy since the founding of the nation.”

SCOTUS turned thumbs down on the once-fringe radical concept that state legislatures should have the last word on, for example, their own partisan and outrageously imbalanced gerrymandering plans. A different decision would have allowed one party (in this case, Republicans) to draw district lines to their own obscene advantage and, with no court oversight regarding constitutionality, wrest and retain control over core political and electoral activities.

Justice John Roberts, who has been steadily undermining the Voting Rights Act, wrote the decision. He reviewed our nation’s long history of developing and validating the principle of judicial review, concluding that even today the Constitution “does not insulate state legislatures from the ordinary exercise of state judicial review.” Three cheers for Justices Roberts, Bret Kavanaugh and Amy Coney Barrett, who sided with the court’s three liberal justices. When was the last time we could say that? (Most certainly I wish that SCOTUS was as respectful of precedent in the Dobbs case on reproductive freedom.)

The so-called “independent state legislature” theory, highlighted during the January 6th committee hearings, provided the rationale for Team Trump’s outrageous efforts to overturn the 2020 election. Donald Trump and his enablers are still insisting that legislatures should have overturned the certified votes and, should he have the opportunity to do so in 2024, will almost certainly test the idea again. The Supreme Court’s decision left wiggle room for further litigation, asserting that there are limits to the role of state courts policing elections for Congress and the President.

One can only imagine that, had the Court embraced the whacko theory, one day it could have been used to justify state legislative primacy in other matters.

In the immediate future, distorted district lines in Alabama, Louisiana and Georgia are likely to be redrawn, all of which could influence the outcomes of congressional races and even help flip control of the House of Representatives back to the Democrats. The decision, however, has more to do with fairness and justice than with any party’s political dominance.

The decision pretty much keeps the status quo, but, in this perilous time, that has to be reckoned a qualified victory. Other decisions expected by the end of this week may not be as reassuring.