(Washington) The Supreme Court of the United States displayed its divisions on Wednesday in a case of electoral law which could revolutionize the organization of the ballots for the White House and the Congress.
At the heart of the debates: a new legal theory proposed by the Republican congressmen of North Carolina which, if adopted, would give free rein to the legislators of the 50 States to organize the federal elections.
Postal voting, office opening hours, documents to be presented to register on the electoral lists…: the Constitution entrusts the elected representatives of each State with the task of setting “the time, place and procedure” of the ballots.
Their laws, however, are subject to review by local courts. This is what elected officials in North Carolina want to change. For them, the Constitution “places the regulation of federal elections in the hands of state parliamentarians and no one else” at this level.
During the hearing, the three progressive magistrates of the Court strongly opposed this doctrine known as “independent state legislators”. It aims to “get rid of the balance of power” when the United States “needs it most”, warned Elena Kagan in particular.
American democracy has been undermined by the efforts of former President Donald Trump, supported by some local elected officials, to have his defeat in the 2020 election invalidated.
The positions of the six conservative judges seem less clear.
Governor’s veto
Some seemed inclined to validate the new theory. Sweeping away concerns for democracy, Neil Gorsuch noted that laws passed by local elected officials would remain subject to review by federal courts.
But others seemed more skeptical. Court Chief John Roberts noted the swings in the position of North Carolina elected officials who, at the start of the proceedings, argued that governors could not veto election laws, before changing their minds. .
Conservative judge Brett Kavanaugh, for his part, seemed to be looking for ways to vindicate elected officials without validating their doctrine. “Isn’t there a more limited alternative to decide in your favour?” he asked their lawyer.
Concretely, their recourse stems from the 2020 census which recorded an increase in the population in North Carolina. As a result, the state gained an additional seat in the House of Representatives and its legislators redrew the boundaries of constituencies.
In February, their map was struck down by the state Supreme Court, which ruled it favored the Republican Party by lumping Democratic voters into certain precincts to dilute their vote elsewhere. A second map did not seem fairer, so the local high court appointed an independent expert to take care of it.
Local lawmakers, led by House Republican Leader Tim Moore, then turned to the US Supreme Court, blaming the state judiciary for usurping their role.
The high court refused to intervene urgently and the expert’s card served well in the mid-term elections in November, allowing seven representatives from each party to be elected. But, while she was not obliged to, she agreed to examine the matter on the merits.
” Absurd ”
Prior to the hearing, President Joe Biden’s government, Democratic senators and states, and all major civil rights groups (ACLU, NAACP, ADL, HRW) wrote to the court to dissuade it from passing the new theory, considered dangerous for democracy.
“This extremist interpretation of the Constitution would help local elected officials disenfranchise some voters, carve up constituencies as they see fit, and potentially sabotage the election outcome,” Sophia Lin Lakin of the ACLU.
The Republican Party deemed their alarmist speech “absurd”. Proving North Carolina’s elected officials “will not give state legislatures carte blanche,” he argued in a separate argument.
But in the conservative ranks, the theory is not unanimous. “Our political system would suffer greatly if the butchering of electoral districts were left out of control,” said former Republican Governor of California Arnold Schwarzenegger.
The court must render its decision before June 30.