“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.” – United States Constitution, Article 1, Section 4
The theory of the “independent legislature.”
How this theory is interpreted in the coming months and years will have major ramifications for how the Commonwealth and other states choose presidential electors.
On most occasions, the clause has been interpreted that states and their legislatures decide the times and places for elections, but Congress can change these for Senators and Representatives. Republican state legislatures in Pennsylvania and North Carolina read that clause as only state legislatures may make election rules, unless the federal government passes contrary legislation.
Translation. Any state court decision requiring the redrawing of state legislative maps is unconstitutional under the U.S. Constitution.
The U.S. Supreme Court has never adopted that stance, deferring to state courts as the arbiters of state constitutions and laws.
And on Monday, the high court turned down the PA and NC redistricting challenges, largely on procedural grounds. However, should the GOP request further review of the case, four justices – Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh – have indicated that they would put the case on the court’s docket, per court rules. To grant a requested stay, the Court would need five votes in favor.
“If the language of the Elections Clause is taken seriously, there must be some limit on the authority of state courts to countermand actions taken by state legislatures when they are prescribing rules for the conduct of federal elections,” Alito wrote.
Even then, how far reaching could the ruling be? “There’s a lot of potential for nuance here,” said Rick Hasen, an election law expert at the University of California, Irvine School of Law who does not support the theory. “Even if you had a majority of justices that agreed that there’s something to this theory, they might not agree that a particular state has violated it,” he told POLITICO.
The Pennsylvania case is unique in several ways. Its Supreme Court never threw out a legislative map. The court selected its own because the governor and the legislature were deadlocked.
“The main votes that everyone is watching are (Chief Justice John) Roberts, (Amy Coney) Barrett and Kavanaugh. And whoever gets two of the three will likely win,” said Cameron Kistler, an attorney at the group Protect Democracy.
Victoria Bassetti, a senior adviser at the nonpartisan States United Democracy Center, noted that it could also create a situation where state legislatures take a more hands-on role in election administration.
A near-unchecked supremacy of legislatures would “essentially make one branch of government the absolute authority of how our democracy is implemented,” she said. “It just really runs counter to the entire idea of American democracy, which is balance of powers.”