CNN
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The Biden administration urged the Supreme Court on Wednesday to reject a legal theory pushed by supporters of former President Donald Trump in the effort to overturn the 2020 presidential election that could change the future of elections.
The after-hours filling from the Justice Department on the so-called independent state legislature doctrine, at issue in the case, comes less than two weeks from November’s midterm elections and ahead of December 7 arguments in the dispute.
Wednesday marked a deadline for “friend of the court briefs” from critics of the theory.
Supporters of the theory say that state legislatures should be able to set rules in federal elections without being held in check by state constitutions either through interpretation by state courts or by the functioning of commissions created under state constitutional reforms.
Voting rights groups fear that if the court were to side with supporters of the doctrine, it could lead to the ability of rogue state legislators to act unchecked when it comes to rules concerning federal elections – and fundamentally change the landscape of election law.
Solicitor General Elizabeth Prelogar, leaning on historical tradition to appeal to the more conservative members of the court, argued in the new filing that “more than two centuries of practice confirms that state legislatures are subject to state constitutional constraints” when they exercise their authority under the Constitution.
Democrats expect that even before the high court resolves the dispute this term, Republicans will cite the theory in legal challenges around the midterms.
Marc Elias, a seasoned election litigator and top Democratic lawyer, said he expects Republicans to rely on the theory in election challenges in the coming weeks.
“We have seen a sharp increase in litigation from Republicans heading into the midterm elections, and a surprising number of these lawsuits involve Independent State Legislature claims,” he said in an interview with CNN Wednesday night.
Calling it the Republicans’ latest “litigation obsession,” Elias said the theory has “no place in our election jurisprudence.”
“It is important that the court slam the door on this fringe theory and recognize the vital role of judicial review in our democratic system,” Elias said.
On the surface, the case before the justices presents a redistricting dispute out of North Carolina involving a lower court decision that invalidated the state’s congressional map. The court struck the map – calling it an illegal partisan gerrymander – and replaced it with a court-drawn map more favorable to Democrats.
Republican legislators from North Carolina are now asking the justices to reverse the lower court. They point to the Elections Clause of the Constitution that provides that rules governing the “manner of elections” must be prescribed in each state legislature.
Under the theory, they argue, state legislatures should be able to set rules with no interference from the courts.
Traditionally, legislatures have set ground rules for conducting an election, but have not acted alone or with the final word. Processes set in place have been subject to intervention by election administrators and state courts.
But the strictest reading of the independent state legislature theory says that state courts, when it comes to federal elections, must stay out.
The majority of the North Carolina Supreme Court, in ruling against the lawmakers, said that legislators do not have unlimited power to draw electoral maps. The state court acknowledged that redistricting is primarily delegated to the legislature but said it must be…
Read More: Justice Department asks Supreme Court to reject legal theory pushed by Trump supporters