Adam Liptak NYT Sidebar column:
As the Supreme Court prepares to hear a case next month that could radically reshape how federal elections are conducted, it has received scores of friend-of-the-court briefs featuring enough strange bedfellows to fill a hotel.
In them, many prominent conservatives joined their liberal counterparts to argue that the Constitution’s text and history, along with the principles of federalism, contradict what has come to be called the “independent state legislature” theory, which would give state legislatures outsize power in making rules for federal elections.
But the justices may pay special attention to a few briefs that made a more practical point. Accepting the theory, these briefs say, would flood the federal courts — and the Supreme Court in particular — with litigation over all kinds of voting disputes.
Chief Justice John G. Roberts Jr. has said that the Supreme Court should be wary of being drawn into election disputes on novel theories, saying they can make the court look partisan and threaten its legitimacy.
“The intelligent man on the street is going to say that’s a bunch of baloney,” he said in a 2017 argument about the consequences of adopting one way to measure partisan gerrymandering. “It must be because the Supreme Court preferred the Democrats over the Republicans. And that’s going to come out one case after another as these cases are brought in every state. And that is going to cause very serious harm to the status and integrity of the decisions of this court in the eyes of the country.”..
f the Supreme Court accepts that legislatures are the only organs of state government that matter in elections, lawyers for the Brennan Center for Justice wrote in a friend-of-the-court brief, countless provisions of state constitutions, decisions of state courts and policies of state election administrators would be called into question.
“The laws and practices it would endanger,” the center’s brief said of the theory, “range from the right to a secret ballot in many state constitutions to independent redistricting commissions in Arizona and California, from ranked-choice voting in Alaska and Maine to automatic voter registration in Michigan and Nevada, from detailed regulations of voter list maintenance in Indiana and Iowa to voting machine testing procedures in Montana and Ohio.”….
Benjamin L. Ginsberg, a veteran Republican election lawyer, warned in another brief that accepting the independent state legislature theory would “make the amount of litigation exponentially greater.”
He added: “That result will be great for the billable hours of election lawyers. But it will be bad for everyone else.”
Richard L. Hasen, an expert on election law at the University of California, Los Angeles, wrote in another brief that the justices should be wary of both the volume of the litigation that the theory would produce and the speed at which it would arrive.
“Election litigation in the United States is already at record highs, up nearly 26 percent in the 2020 election period, compared to the 2016 period, and nearly tripling in the period since the disputed 2000 election,” Professor Hasen wrote. He added that “an expansive interpretation of the Elections Clause surely will fuel much more litigation, placing a heavy burden on federal courts, and especially on this court, as it will be asked to consider an ever-increasing number of time-sensitive, election-related motions on its emergency docket.”
The emergency docket, which critics call the shadow docket, generally yields terse rulings with little or no reasoning based on rushed briefs and no oral arguments. No one thinks the court does its best work in those circumstances.
If the Supreme Court adopts the independent state legislature theory, Professor Hasen wrote, “the high number of election cases on the emergency docket will surge even further.”