Wednesday, November 30, 2022
Nov. 30, 2022

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Estrich: Election law next frontier of battle


This might be the first time the Conference of Chief Justices, the group representing the top courts in all 50 states, has weighed in to an ideologically charged Supreme Court case. And with good reason. The issue is whether state courts and state constitutions limit the role of state legislatures in election law cases.

If North Carolina Republicans have their way, state legislatures would wield extraordinary power unchecked by the state courts or state constitution.

The case pending before the U.S. Supreme Court involves the redistricting map drawn up by the North Carolina Legislature, which the Supreme Court of North Carolina found to be unconstitutional as a matter of state law. The map drawn by North Carolina Republicans was found to be the sort of partisan gerrymandering that violates the state constitution.

On appeal to the U.S. Supreme Court, North Carolina Republicans are arguing that the state court lacked the power to review the map. It is, the Chief Justice of the Texas Supreme Court told reporters, “the biggest federalism issue in a long time.”

It is becoming clear that election law is the next frontier in an ideological battle that began with the Trump campaign but certainly will not end there.

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.

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