Perhaps the first time you heard the phrase “checks and balances” was in middle school civics class. Not surprising, since it’s a cornerstone of American democracy. The executive, legislative and judicial branches of government act as counterweights to each other, so that no single branch dominates.
That’s true at the federal level — and in every state.
This summer, the U.S. Supreme Court will rule on a case that challenges the notion of checks and balances, and in so doing, could upend America’s democratic framework for holding elections. Depending on the scope and reach of the court’s decision, it could have crucial ramifications for upcoming contests, perhaps even the presidential race in 2024.
The case, Moore v. Harper, comes out of North Carolina, where Republicans argue that the elections clause in the U.S. Constitution gives state legislators unilateral control over the “times, places and manner” of congressional elections, including the decennial process of redistricting.
The state supreme court in North Carolina struck down the state legislature’s remap saying it violated the state constitution. The state’s Republicans, however, claim it’s state legislatures, and not state supreme courts, that have the ultimate say over remaps.
Underpinning the GOP argument is the legal concept known as “independent state legislature theory,” which has never been sanctioned by the Supreme Court. Now, however, the court’s conservative justices could make the theory the new standard for America’s elections.
That would prove disastrous for American democracy, which recently has been cuffed more than a few times by everything from former President Donald Trump’s failed bid to assemble a slate of fake electors and overturn the results of the 2020 presidential election, to the Jan. 6, 2021, attack on the Capitol.
A ruling that embraces independent state legislature theory would allow state lawmakers to thumb their noses at state constitutions, particularly provisions that codify voting rights, such as assurances of options for mail-in voting and casting absentee ballots. State constitutions are blueprints for the exercise of democracy — weakening them sets the table for electoral chaos and dysfunction.
A victory for North Carolina’s GOP would also effectively create a license to gerrymander. The practice, as popular among Democrats as Republicans, already is a scourge across the country, at every echelon of government.
In 2021, Illinois Democrats ensured their chokehold on power in Springfield through behind-closed-doors remapping. In the upcoming Chicago aldermanic elections, the most recent remap has yielded weird, irrationally shaped polygons aimed not at providing the most effective and efficient constituent services to Chicagoans but at keeping clout-wielding aldermen in power.
Perhaps what’s most disturbing about independent state legislature theory is that it effectively negates the whole concept of checks and balances. State legislatures are fallible, as are governors. State supreme courts represent a bulwark against that fallibility. Limiting state supreme courts’ ability to uphold their respective constitutions makes the electoral process dangerously vulnerable to abuse — and ultimately disenfranchises voters.
When the Supreme Court heard arguments on the North Carolina case in December, Justice Elena Kagan framed her concerns this way: “It would say that legislatures could enact all manner of restrictions on voting, get rid of all kinds of voter protections that the state Constitution in fact prohibits.”
“This is a proposal that gets rid of the normal checks and balances on the way big governmental decisions are made in this country,” Kagan continued. “And it gets rid of all those checks and balances at exactly the time when they are needed most.”
We know what Kagan was hinting at. Though Trump failed in his bid to overturn the 2020 presidential election, he had allies in key states willing to execute his scheme. The Trump team looked to state legislatures in battleground states as the fulcrum for his bid, and his allies specifically cited the independent state legislature theory as justification for their actions. Imagine if those Trump loyalists at the state level had unchecked power and state supreme courts could not intervene.
The U.S. Supreme Court is expected to rule on the case this summer. Kagan’s fellow justices have a lot of time to weigh the ramifications of Moore v. Harper, and heed her warnings. That’s exactly what they should do.
This country’s electoral process has taken some serious hits in recent years. The Supreme Court must firmly remind state legislatures that they are bound by their state constitutions, and ensure those broadsides come to an immediate end.
