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“We want the bombs to be disarmed by at least the 2024 election,” said Justin Levitt, a former senior policy adviser for democracy and voting rights to President Biden and now a professor at Loyola Law School.
Some legal experts warn that accepting any version of this theory could reshape American elections by giving Congress the freedom to set the rules for congressional elections. For example, states could allow partisan gerrymandering to go unchecked or unjustly change the rules governing how people register to vote and vote. Most urgently, those who warn that this theory could give Congress similar unrestricted powers over presidential elections, as the provisions of the U.S. Constitution governing presidential and congressional elections have similar wording. There is also
“Holding parliamentary or presidential elections would be an instant disruptor,” Levitt said. He and others argue that election laws are now interpreted by decades, even centuries, of state court rulings, plus that state and local election officials enforce election laws. claims to make countless daily decisions to All of this would immediately be called into question if the Supreme Court accepted the ISL’s reasonable interpretation.
“This means we no longer know if the same rules that apply to state elections apply to federal elections,” he said.
The U.S. Supreme Court Moore vs Harper, an incident that occurred in North Carolina last year, seen by many proponents of the independent legislature theory as a way to tackle the theory. In that case, Republican lawmakers in North Carolina ruled that the map they drew was partisan unconstitutional gerrymandering and that the court-made map of Congress would ultimately be used in the 2022 election. This is an appeal against the state Supreme Court decision.
Four Supreme Court justices, Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh, have at least supported the ISL theory in the past. At oral arguments in December, however, the majority of the court appeared reluctant to adopt a stronger version of this theory.
But since December, the North Carolina Supreme Court has announced it is rehearing a lawsuit regarding redistricting in the state. This is a highly unusual move after November’s election reversed the Supreme Court from 4-3 Democrats to 5-2 Republicans. Ultimately, the North Carolina Supreme Court overturned its ruling on redistricting, stating that it would not sue for partisan gerrymandering, and annulled the ruling on which it was based. moore The case is still under consideration by the United States Supreme Court.
This raises the question of whether the U.S. Supreme Court will continue to rule. moore Alternatively, it dismisses the case as suddenly granted, or the court effectively says it should never have heard the case in the first place. There are signs that courts are leaning in that direction.
The Supreme Court has twice asked those involved in the case to provide further clarification. Once after a North Carolina state court announced it would rehear the case, and again following North Carolina’s ruling. Courthouse observers say the petition for further briefings is a sign that the U.S. Supreme Court may skip a final ruling.
This situation has led to some rather unusual disagreements. Some opponents of this theory argue that the courts do not have the authority to decide and should dismiss the case, while others argue that it is imperative that the court decide now. .
The North Carolina court’s ruling “confirms that the Supreme Court needs to decide whether Congress should be able to govern federal elections without any checks or balances, or whether it still wants the court’s role. We’re making it even clearer,” said Cathay Feng, vice president of programs for the good government group Common Cause. Common Cause is one of the parties to a federal lawsuit opposing the ISL theory.
“We need a final answer from the Supreme Court,” she continued.
But Mark Elias is a high-powered Democratic attorney, and his firm has represented other parties in elections. moore He said he did not agree with the case, saying that there was always a question of jurisdiction in this case and that the High Court did not need to consider it.
Mr. Elias is not the Counselor of Record, moore The lawsuit argued that conversations surrounding the ISL were conducted primarily by people in the “faculty lounges of various law schools,” not those who regularly litigate. And the current composition of the courts also raises concerns, he says. “Considering the composition of the Supreme Court, those who value free and fair elections should not rush to force the Court to create some doctrine where there is no principle,” he added.
The court has given no indication as to when it will decide on the case or the possibility of suddenly dismissing it as granted. But even if that happens, the courts will have relatively little chance to reconsider the ISL before the 2024 election heat.
Former White House aide Levitt said so many judges have publicly embraced at least part of this theory in their past writings that the courts have already started “battle” with the ISL, and lower courts have also It claims that it may follow suit and try a trial in court. Apply theory to decision making.
“It’s a big problem to have mixed signals in the middle of an election cycle,” Mr. Levitt said.
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