The Daily - A Court Case That Could Transform Elections

Episode Date: December 9, 2022

On one level, the case brought before the Supreme Court is about gerrymandering. But on a broader level, it’s about a theory that would completely reorient the relationship between the federal and state governments and upset the ordinary checks and balances.Guest: Adam Liptak, a correspondent covering the Supreme Court for The New York Times.Background reading: The Supreme Court justices are considering whether to adopt the “independent state legislature” theory, which could give state lawmakers nearly unchecked power over federal elections.For more information on today’s episode, visit nytimes.com/thedaily. Transcripts of each episode will be made available by the next workday. 

From New York Times, I'm Michael Barbaro. This is The Daily. Today, why the Supreme Court is unusually split over a case that could give partisan state legislatures unchecked power over the way elections are run. legislatures uncheck power over the way elections are run. My colleague, Adam Liptak, followed along as the justices debated the case. It's Friday, December 9th. Adam. Hello, Michael. Good evening. I have a confession to make, which is that I miss you. I don't get to do a lot of these interviews with you anymore. Sabrina really likes you, and she's been hogging you.

And it's been challenging. I feel so bad about that. I want to be both of your friends. I think you can be both of our friends. So a few weeks ago, in an interview with Sabrina, you previewed this entire Supreme Court term for us. And you briefly told us about this case back then. But now that this case on Wednesday went before the court in full oral arguments, remind us what it's about and why it's so important.

Remind us what it's about and why it's so important. So on one level, it's about gerrymandering and what can be done about voting maps warped by partisanship. But on a much broader level, it's about a quite radical theory that would completely reorient the relationship between the federal government and state governments. And would also upset ordinary checks and balances in state governments. So while important and interesting enough, just on the gerrymandering point, is also a case with the potential to really completely transform how American elections are conducted. So tell us the story behind this case. A couple years ago, after the most recent census, North Carolina draws new congressional maps.

It's drawn by the state legislature, controlled by Republicans. And like state legislators in many places, they try to advantage themselves. So North Carolina is basically a purple state. It's about 50-50, Republican and Democrat. Swing state. Yeah, it's a swing state. But using aggressive technology, the lawmakers come up with a map that most people think would result in about 10 Republican and four Democratic seats. So a pretty extreme form of Republican favoring gerrymandering. Right. And that map is challenged in court. And the North Carolina Supreme Court says, no, it's unconstitutional under the state constitution. It's a partisan gerrymander. We reject it. And outside experts appointed by a court draw a new map. And that's the map indeed that in November

the election was conducted under. And it resulted in seven Republican and seven Democratic seats. So by that standard, it seemed to reflect the politics of the state. And this is pretty standard in a way, Adam, right? I mean, when gerrymanders happen through legislatures, state courts tend to end up reviewing them and with some frequency find that they don't pass legal muster. This happened pretty recently in the state of New York. It was a Democratic gerrymander that was struck down by the state court. So everything you're describing seems sort of normal. Yeah, that's reasonably routine. But we have a twist in this case. The state lawmakers, unhappy with this result, make a new argument. They say

that the state Supreme Court is powerless to tell them that their map is an unconstitutional gerrymander under the state constitution. Why? They say that in this context, the U.S. Constitution has something to say. The U.S. Constitution has an elections clause in it. I'm going to read it to you, and while I read it,

focus on whether the term legislature jumps out at you and whether it seems to have special meaning. Okay. The clause says the times, places, and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof. Yeah, explain what you mean by the emphasis on legislature. So the state lawmakers say that that word, because it singles them out, gives them unchecked power and that they can't be second-guessed

by state Supreme Courts and the state Constitution, that the U.S. Constitution has given them supreme power. And that's not the only or certainly not the obvious reading of the clause. A state legislature is created by a state constitution and is generally thought to be embedded in a lawmaking process that includes the governor, that includes state courts, that sometimes includes executive agencies, that sometimes includes independent commissions. But it's a possible reading, I suppose, that legislature means legislature only. And that's what's at issue in this new case.

Got it. So the North Carolina Republican lawmakers are arguing when it comes to election law, they should not have to deal with any other forces at the state level that might impede their wishes. And I have to say, based on what you just read to me from the U.S. Constitution, that seems a pretty audacious argument because there isn't language in the U.S. Constitution that says only the legislature or the legislature should not be subject to state judicial review. So is this a conventional reading at all of this clause or is it seen as kind of an outlying interpretation? It's never been accepted by the Supreme Court. There are references to it in Bush v. Gore in a concurrence, and it's been kind of toyed with by four of the more conservative members of the

U.S. Supreme Court in separate opinions in recent election cases. But most people think that, as you say, Michael, this is not a conventional reading of this clause. It's new, it's different, and some might say it's pretty radical. So I think that starts to hint at why the stakes of this case are so high. That starts to hint at why the stakes of this case are so high. So many state legislatures, most of them run by Republicans, are pushing for partisan and many would argue undemocratic election measures. They've been doing that in an extraordinary way since Donald Trump lost his election in 2020. It sounds like the theory here from Republicans is that if state courts are prevented from ever reviewing their actions,

they stand a greater chance of getting into law, election rules that will perpetuate their power. So that's exactly right, Michael. But I want to complicate things a little bit because this is the rare case in which people's politics don't really predict where they stand on these constitutional issues. There are a whole bunch of leading Republicans, respected former federal court judges, all 50 chief justices of the state's Supreme Courts,

a founder of the Federalist Society, perhaps the leading Republican election lawyer, all saying that this is a crazy reading of the elections clause. That whatever the advantage or not, today, tomorrow, the next day, for Republicans or Democrats, the idea that the federal government is going to, in this instance, in this instance only, tell state governments how they are going to run their governments and to elevate one organ of the government, the legislature, over everybody else, is a devastating blow to federalism. Because it's quite an idea that you're going to tell a state that its state Supreme Court can't interpret its state constitution in judging the constitutionality of a state voting law about

federal elections. So even Republicans who might recognize that there's political benefit in a ruling that goes along the lines of what these North Carolina lawmakers want think that that ruling might violate their long-held views of the role of states and the role of federal government, and therefore this is inadvisable. That's right. And this is a rare case in a second sense. I mean, these days, the Supreme Court has become quite predictable. In big cases, it's very often a 6-3 court with the six Republican appointees in the majority and the three Democrats in dissent. This case is more complicated, less predictable, and that means the arguments on Wednesday were particularly interesting. We'll be right back. So Adam, tell us about these oral arguments that happened on Wednesday.

We will hear argument this morning in case 21-12-71, Moore v. Harper. So, they went on for about three hours. For some reason, Supreme Court arguments these days have become incredibly long. Mr. Thompson. Mr. Chief Justice, and may it please the court. The first part of them was taken up by a lawyer for the Republican legislators, David Thompson, and he really dwelled on history. The most prominent discussion of the elections clause in the early republic

occurred during Massachusetts' 1820 Constitutional Convention. And he tried to cobble together various historical sources to suggest that the Constitution in referring to legislature really did mean to elevate legislatures. Joseph Story, then a sitting justice on this court, explained that a proposed constitutional amendment requiring representatives to be elected in districts would violate the Elections Clause because that clause vested state legislatures, quote, with an unlimited discretion in the subject.

And he turned to quotations from founding era luminaries. As Alexander Hamilton wrote in Federalist... That I'm not sure we're entirely convincing. The scope of legislative authority is governed by the commission under which it is exercised. Here, that commission is contained in the United States Constitution, and it is federal law alone

that places substantive restrictions on states' legislatures. But it did appeal to those members of the court, on the right side of the court, who are very interested in the meaning of the Constitution at the time of its adoption. And what about the lawyer for the opposing side, those who reject this North Carolina theory? There were three of them, but the lawyer who got up first, Mr. Katyal, Neil Katyal, thank you, Mr. Chief Justice, and may it please the court, made a very vigorous presentation that not only disputed the historical materials. To accept petitioners' claim, you'd have to ignore the text, history, and structure of our federal constitution,

as well as nearly every state constitution today. Petitioners say for two centuries, nearly everyone has been reading the clause wrong. That's a lot of wrong and a lot of wrong past elections. But focused the court on precedents and on consequences. Finally, the blast radius from their theory would sow elections chaos, forcing a confusing two-track system with one set of rules for federal elections and another for state ones. Notably, he said that accepting this theory would have a blast radius that would sow deep

confusion in all kinds of election-related matters. Case after case would wind up in this court with a political party on either side of the V. That will put this court in a difficult position instead of leaving it to the 50 states. Adam, before the break, you had said that this is one of those cases where the justices who are hearing these arguments are not seen as predictably lining up one way or another. seen as predictably lining up one way or another. But what's your sense as these oral arguments are taking place and as these justices are about to start asking questions of these lawyers of where folks do stand? So, Michael, they seem to sort themselves into three groups, three groups of three justices each. The easiest group to start with are probably the three most conservative justices.

Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch. They seemed quite receptive to the arguments they were hearing from the Republican lawmakers and quite hostile to Neil Katyal and the other lawyers representing the other side. Let me ask you this, this is maybe a bit unfair. Justice Thomas asks a question in which I guess he suggests that Neal Katyal and his colleagues might be a little situational. If the state legislature had been very, very generous to minority voters in their redistricting. He wonders what they would say if the state legislature had been generous to minority voters and the state Supreme Court had said that was not constitutional. Justice Gorsuch said it seems as though it depends on whose ox is being gored, so I'm changing which ox is being gored.

Yeah, no, we don't think anything turns on the substance of the individual decisions. And Kachal said, you know, this is a matter of principle, and he would take the same position. This court has never second-guessed state court interpretations of their own constitution. And so if there's a general clause

and it happens to benefit or hurt minority voters, as Judge Sutton says, that's a process the states deal with. And Justice Alito wonders what's so special about state Supreme Courts. Many state Supreme Courts are elected. And some states allow partisan

elections. So there's been a lot of talk about the impact of this decision on democracy. Do you think that it furthers democracy to transfer the political controversy about districting from the legislature to elected Supreme Courts where the candidates are permitted by state law to campaign on the issue of district. Yes, Your Honor, we do. So he is asking, why should we trust what are in many cases elected judges to do this work above elected legislators in places like North Carolina. Yeah, he says if you're interested in democracy, the place you find most democracy is in state legislatures. Got it. Okay, so those are the justices who we assume will side with the North Carolina argument. What's the next group of three justices? Well, so if those three conservative justices are on one

end, the three liberal justices are on one end, the three liberal justices, Sonia Sotomayor, Elena Kagan, and Ketanji Brown-Jackson, are adamantly on the other end. They have no use for this theory. They say it's inconsistent with the court's precedence and that it would have terrible consequences. Justice Kagan? If I could, Mr. Thompson, I'd like to step back a bit and just, you know, think about consequences, because this is a theory with big consequences. Justice Kagan, in particular, spoke at length about just how this would undermine not only redistricting cases, but all kinds of voting cases. 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. It might allow the legislatures to insert themselves, to give themselves a role in the certification of elections and the way election results are calculated. So, and in all these ways, I think what might strike a person is that this is a proposal that gets rid of the normal checks and balances on the way big governmental decisions are made in this country. And you might think that it gets rid of all those checks and balances at exactly the time when they are needed most. Right, and listen to Kagan's argument here.

And what I heard her really saying was, why would we ever willingly remove a check and balance from potential excesses by state lawmakers when it comes to elections. Yeah, and her argument has force. The whole American system of government is based on the relationship between the federal and the state government, and then within each of those governments, the relationship between the three branches. And to unsettle that could have profound consequences. Now, David Thompson, the lawyer for the Republican lawmakers, comes back and says,

Your Honor, so our position is that checks and balances do apply. Well, there's still checks left. Congress can always act, and that's true. But they come from the federal Constitution and the panoply of federal laws, like the Voting Rights Act and other statutes that are highly protective of voters. So there is a check, there is a balance, and there's also a political... Justice Jackson?

Yes. Justice Katonji Brown Jackson makes the point that state legislatures, you know, didn't come out of nothing. Why suddenly in this context do you say, no, no, no, all those other constitutional provisions that would bind or constrict legislative authority that the state gives you

because you're the state legislature, right? Why do those evaporate in this world? I read it as though the state court is essentially saying our Constitution authorizes you to be the legislature only insofar as you act in accordance with our Constitution's tenets. And she just doesn't get the idea of why you should try to carve out the state legislature to be a kind of rogue actor that can do whatever it wants. Right, which is another way of saying she does not think that the election clause you read to us earlier from the Constitution does what the North Carolina Republicans say that it does. Right. Why am I wrong about sort of conceptualizing it in that way? And Thompson's response is... Because

it's a federal function. That the Constitution has chosen to make this a federal function. They delegated that function to the states, Thompson says, and that means they can delegate it on whatever basis they like. So Adam, that leaves us with a third group of three justices. Tell us what they did during this oral argument. Justice Amy Coney Barrett. And they were asking questions which were not wholly unsympathetic to the theory, but that very much was looking for a limiting principle. Mr. Thompson, if I could just piggyback quickly on Justice Sotomayor's question. At the outset, Justice Sotomayor said, you know, we presume that states possess power unless they've given it up. So this is my question about the elections clause. Would the baseline assumption have been that the states possess the power to regulate?

Basically, finding a way to let state Supreme Courts do what they usually do, except if they really get out of line. And figuring out how to say that and what that means is hard, and figuring out how to say that and what that means is hard, but they worked on it. And they were also quite taken by, for instance, Justice Barrett and Chief Justice Roberts both saying, well, the Supreme Court has already looked at an aspect of this and it said that a gubernatorial veto doesn't run afoul of the election clause.

You can see that state legislative action under the elections clause is subject to a governor's veto, right? Yes, Your Honor. Well, the governor's not part of the legislature. Why do you concede that point? Well, Your Honor, first of all, we're not here to relitigate...

And if that's true, doesn't that tend to undermine the argument about state Supreme Courts? I mean, doesn't that tend to undermine the argument about state Supreme Courts? I mean, if we're going to let one organ of government participate in lawmaking in this area, why shouldn't we let another organ? Vesting the power to veto the actions of the legislature significantly undermines the argument that it can do whatever it wants. Well, Your Honor, that's a procedural limitation. Let me make sure I understand this. Roberts and Barrett are interested in the fact

that at the state level, where we have these three branches of government, the North Carolina lawmakers are saying, don't let state courts interfere with the legislature doing anything related to elections. But one of the other branches, the governor in a state, already routinely intervenes in election matters with a veto power. And so that veto power should be the same as a state court reviewing an act by the legislature. And if those are the same, then why are we here talking about making the state legislature immune from judicial review at the state level. That's right.

And the Supreme Court, the U.S. Supreme Court, has already decided that the governor's veto is OK. So both Roberts and Barrett said that's a problem for the North Carolina Republican lawmakers. Thank you, counsel, all counsel. The case is submitted. So, Adam, in your capacity as the chief tea leaf reader of the Supreme Court and one with a pretty unblemished record of prognostication, how do you see this ruling playing out?

So I expect a splintered decision. The less interesting question here is whether the North Carolina lawmakers win or lose. The more interesting question is what's the standard the court announces? And I could imagine them winning, but winning small. And I can imagine them losing and losing small. But I do think that the extreme version of the theory will be rejected. version of the theory will be rejected, and that in the coming months, I would think that there will be a lot of drafts exchanged among the justices, and the three in the middle, the three relative centrists on the current court, will work hard to come up with a standard

that will not throw an atom bomb in the middle of American elections, but will give federal courts a limited, perhaps quite limited role in overseeing state Supreme Courts when they rule on state laws regarding federal elections. So what might this kind of compromise, center-driven standard actually look like? So there are lots of possibilities, but one of them could be for the U.S. Supreme Court to say, state Supreme Courts can work in this area. They can make rulings.

They can reject maps and other kinds of voting rules restrictions. What they can't do is substitute their own judgment for the judgment of the legislature in remedies, in drawing the map. So in this North Carolina case, that would mean the state Supreme Court is free to say that the map that would have generated 10 Republican and four Democratic representatives was no good. But it was not their job then to draw their own map, but rather to send it back to state legislatures to comply with the law. Adam, I wonder if we should end by exploring why it is that this case, of all cases, is turning into an exception to that predictability you described earlier with which this court, especially as conservative majority, rules. I mean, this is a conservative majority that had no problem striking down Roe v. Wade or undercutting the authority of the Environmental Protection Agency or meaningfully expanding gun rights. It's not a shy conservative majority at all. expanding gun rights, it's not a shy conservative majority at all. And yet this case, for some reason, is looking like a bridge too far for them. I guess I have two kinds of answers for you,

Michael. One is, and this is pure speculation, but it only takes four votes to add a case to the Supreme Court's docket. I'm not sure that there were more than four votes here, and that it's entirely possible that, say, the Chief Justice and Justice Barrett were not on board for taking this on. The other is simply that it's so dangerous. Accepting the theory in its fullest form would have unpredictable but very large consequences. And even this court, which has tended to move fast and in the eyes of some move recklessly, doesn't seem to me to be prepared to completely upend American democracy. to me to be prepared to completely upend American democracy. Hmm. I do have to wonder, though, given this court's willingness to upend many important things under its jurisdiction, like abortion, if its reluctance has to do with the fact

that this case is about other judges, right? And judges here at the Supreme Court seem to be reluctant to sideline other fellow lower court judges. And is that perhaps a part of this? I think that's a very smart point. And I think the fact that the 50 chief justices of all of the Supreme Courts, all the state Supreme Courts in the nation, are begging the court not to oust them from their traditional role, has got to play a role with this Supreme Court. Right. Because nobody likes to piss off their peers. Well, it's easier to understand and respect the work of people who do the same stuff you do. Like you. Which is why I enjoy being with you.

I was first, for the record. Well, Adam, thank you very much. We appreciate it. Thank you, Michael. We'll be right back. Here's what else you need to know today. She's safe. She's on a plane. She's on her way home. After 10 months of captivity in Russia,

Brittany Griner, the American basketball star, was released on Thursday in a prisoner swap for Victor Boot, a convicted Russian arms dealer being held in the U.S. This is a day we've worked toward for a long time. We never stopped pushing for her release. The swap was approved by President Biden, whose administration has been quietly negotiating Greiner's release for months. In remarks from the White House,

Biden said that Greiner had been through hell. After months of being unjustly detained in Russia, held under intolerable circumstances, Britney will soon be back in the arms of her loved ones, and she should have been there all along. And on this vote, the yeas are 258, the nays are 169, present 1. The motion is adopted.

On Thursday, Congress completed approval of a landmark bill that would legally protect same-sex marriage, a bill triggered by fears that the Supreme Court's conservative majority could issue rulings that threaten it. The bill now awaits the approval of President Biden, who has vowed to quickly sign it into law. Today's episode was produced by Ben Calhoun, Lexi Diao, and Alexandra Lee Young. It was edited by Lisa Chow, contains original music by Marian Lozano and was engineered by Chris Wood. Our theme music is by Jim Brunberg and Ben Landsberg of Winderly.

That's it for The Daily. I'm Michael Barbaro. See you on Monday.