Editorial: The Supreme Court must not embrace the dangerous ‘independent state legislature’ theory

When the Supreme Court begins its new term Monday, one of the most consequential cases involves not guns, abortion, gay rights or COVID-19 mandates, but the way states determine how legislative lines are drawn and votes are counted. If the conservative supermajority embraces the radical “independent state legislature” theory, it will deal a body blow to the integrity of American elections.

Last year, after North Carolina legislators engaged in an extreme partisan gerrymander favoring Republicans, the state’s Supreme Court, citing clear violations of the state constitution, struck down the map. The legislature then put forward a second gerrymandered map, leading a state court to order a special master to draw fair lines for congressional elections. Republican legislators — including Timothy Moore, speaker of the state House of Representatives— raced to the Supreme Court, insisting that the U.S. Constitution gives them and only them power over such matters.

That scenario might sound familiar to New Yorkers — because something similar happened here. After the breakdown of Albany’s Independent Redistricting Commission, Democratic legislators passed an obnoxiously gerrymandered congressional map. The state’s high court rightly knocked it down, ordering a special master to draw fair, legal lines.

The lawmakers’ argument to the high court is plain bunk. While it’s true that the Constitution’s Elections Clause gives state legislatures purview over “the times, places and manner of holding elections for senators and representatives,” nobody has ever seriously entertained the notion that this robs state courts of all power to review whether their actions are consistent with legal and constitutional requirements.

Should the Supreme Court now give the notion credence, state elected officials of both parties — whose top priority is to get themselves reelected — would be able to ignore their own laws to advance personal and partisan goals. This would apply not only to redistricting, but to dozens of other rules governing casting ballots.

Our democratic republic already has a hard enough time taking partisan thumbs off our electoral scales. Remove the courts from the equation, and it would be game over.