school of journalism at Arizona
state university.
Judy: The U.S. Supreme court
heard arguments in a case they
could have far-reaching effects
and dramatically reshape the
country's elections.
John yang explains.
Reporter: Judy, this case hinges
on the interpretation of these
22 words in the constitution.
The times, places and manner of
holding elections for senators
and representatives shall be
prescribed in each state by the
legislature thereof.
Now, does that mean only state
lawmakers can regulate
elections, including drawing
congressional districts, however
they want to without state
courts reviewing their
decisions, or should the term
legislature be read broadly?
To mean the entire apparatus of
state government, including
state courts interpreting state
constitutions?
Justices wrestled with this case
for nearly three hours today,
twice the allotted time.
Marcia Coyle is chief Washington
correspondent for the national
law journal.
And Nate personally is an
election law scholar at Stanford
university.
The immediate case here is about
redistricting in North Carolina.
The state court set the
lawmakers back to the drawing
board twice.
And even the second step they
said was a pro Republican
gerrymander.
And so they had a panel of
experts draw up the court's own
map for use in last month's
elections.
What about the future?
What are the consequences if the
court adopts this theory which
is called the independent state
legislature theory?
>> Well, they could issue a
narrow ruling or they could
issue a road really.
At its narrowest, the court
would say that, that state
constitutions really cannot
constrain state legislatures so
that a state judge whether it's
at the state supreme court or a
trial court judge would not be
able to use the state'
constitution to prevent partisan
gerrymandering.
But there could be broader
interpretations as well.
And because as you mentioned,
this was is not a gerrymandering
clause.
It's a clause about elections,
congressional elections.
And so this could potentially
prevent state courts from
applying state constitutional
provisions that apply to all of
the electoral system.
Absentee voting, primary
elections.
Anything that could be
interpreted as the time, place
and manner of congressional
elections.
Reporter: Isn't this theory what
president trump's lawyers used
to argue about keeping Donald
Trump in the white house after
the 2020 elections?
>> Well, that's right.
That's not this particular
clause.
There's a separate clause in
article two that relates to
presidential electors and the
power of a state legislature to
appoint them.
So if you really believe that
the state legislature is
independent, and is not subject
to state judicial review under a
state's constitution, that would
apply to the state's choice of
electors as well, which would be
given solely to the state
legislature.
Reporter: Marcia, you're in the
courtroom today for these three
hours of arguments.
There was a lot of skepticism
from the liberal justices about
this.
Here's justice Elena Kagan.
>> When we think about this
word, legislature, we're
thinking about it as embedded in
a system of constraints.
And one of those constraints is
the governor and another of
those constraints as the courts.
And that's the normal way that
legislatures operate and act, is
as subject not as absolute but
as subject to constraints.
Reporter: What's the
significance of that?
>> This is very important,
justice Kagan, and also the this
concern was echoed by justice
Sotomayor and justice Jackson
there.
As justice Kagan further
explained, under this theory
that the Republican leaders of
the North Carolina legislature
are pushing, justice Kagan said
the theory would get rid of
checks and balances, the normal
checks and balances that we see
operating in government today
and she said that are critically
needed right now more than ever.
So that concern continued to
play in her questioning, as well
as the other justices.
In fact, justice Jackson made a
point that she had a hard time
she said, wrapping her mind
around the fact.
Well, state constitutions are
the source of authority for
state legislatures.
And here state legislatures and
under this theory, are saying we
can violate the state
constitution.
Reporter: Now for the
conservative majority,
originalism is very important to
them the history and tradition
of the laws.
Today, there was even a question
about from justice Alito about
the meaning of fair elections in
the North Carolina constitution
in this exchange with Donald
Perrelli who was arguing for the
North Carolina election
officials.
>> What is this free elections
clause trying to get at in the
North Carolina constitution and
the other constitutions that
adopted it at the time of the
framing?
>> 1776.
200 plus years ago.
Was anybody at that time saying
election isn't free, if there's
political gerrymandering?
Reporter: Where else did this
argument come up today?
>> Well, this this case, very
much involves what at least four
justices are committed to,
originalism.
They look at constitutional
questions through the lens of
texts, history and tradition.
And so the supporters of this
theory believe that history is
on their side, whereas the
abundance of the theory, I
believe that history is on their
side, and I would have to say
that the weight of history if
you do respect American
historians, and they filed
numerous briefs and in this
case, the weight of history is
really on the opposite side of
the North Carolina Republican
lawmakers.
Mr. Verrilli was talking about
the free election clause in the
North Carolina constitution.
30 states I believe.
The professor can correct me if
I'm wrong, have those free
election clauses.
Many of them were adopted in the
late 18th century, early 19th
century, and today they're
viewed as requiring fair
elections and the fair
administration of elections.
Justice Alito's comments seem to
suggest well, he was skeptical
, that when they were adopted
and even earlier than anybody
had in mind partisan
gerrymandering.
Reporter: Would those parts of
those state constitutions go
away if the, if the supreme
court adopted this reasoning,
this theory?
>> Well, they wouldn't apply to
federal elections.
They might still apply to state
elections.
But the idea of the independent
state legislature doctrine is
that the legislatures are
independent and that the state
constitutional provisions
related to elections couldn't be
applied to them by the state
supreme court.
I really want to emphasize how
sort of radical this idea is.
I mean, when sort of in high
school civics, we learned about
federalism, we learn about
separation of powers and checks
and balances, this rips all of
that away.
You're going to have potentially
the U.S. Supreme court telling a
state supreme court what it's
able to do, and it's going to
basically on more the state
legislatures from their
constitutions.
Reporter: Who seemed to be the
strongest proponents of this
idea of the independent state
legislature theory?
>> On the court.
It's hard to say who was
strongest, I would say that most
sympathetic appeared to be
justices Alito, Thomas and
Gorsuch.
And then as I mentioned earlier,
the ones with the greatest
skepticism and concern are Kagan
Sotomayor and Jackson.
Now that sort of leaves the
chief justice, and justices
Cavanaugh and Amy coney Barrett,
who really didn't tip their
hands either way.
All 3 of them made comments that
might lead you to believe that
they could go either way.
So we're just going to have to
wait and see but I think those
three justices may well hold the
key to the fate of this theory,
which, as the professor said, is
really considered revolutionary.