The need to protect the electoral process from the ugliness of partisan politics has never been greater. That the state courts have an extraordinarily important role to play in ensuring the integrity of elections should go without saying. State courts interpreting state constitutions have a vital role to play in enforcing the rule of law.
As then-Justice William Brennan recognized half a century ago, the state courts become the first resort in protecting the most fundamental rights, including the right to vote, and to have one’s vote count equally. That is what was at stake in North Carolina, and it will not be the only place these issues play out.
Four members of the Supreme Court have indicated sympathy with the independent state legislature theory, which is why the chief justices’ decision to file a brief in the case is so important. The need to protect the integrity of the electoral process against those who would subvert it for partisan gain has never been greater.
Hopefully, the so-called conservatives on the Supreme Court will see it that way. But I’m not counting on it.
The question of whether state courts should enforce state constitutional protections of voting rights should be easy to answer with a resounding yes. That it is an open question is clearly what troubled the conference of chief justices, and rightly so.