In the span of a few weeks, the conservative majority on the U.S. Supreme Court has upended long-standing laws and constitutional precedents on abortion, guns, environmental regulation and taxpayer support for religious schools.
Are elections next?
That’s the question elections officials and legal observers across the country – including here in Maine – have been asking since last week when the justices agreed to review a case out of North Carolina with potentially enormous national implications.
“What this would do is it would place the sole authority for redistricting, for federal election laws and for choosing of presidential electors with the state legislators. And that’s extraordinarily concerning from the perspective of democracy and our Republic,” said Maine Secretary of State Shenna Bellows, a Democrat.
Depending on how the court rules, the case could also affect Maine’s use of ranked-choice voting as well as election practices that are included in the Maine Constitution but not the U.S. Constitution.
The case, Moore v. Harper, is ostensibly about Republican gerrymandering in North Carolina where the state Supreme Court blocked implementation of reconfigured congressional district maps. Put forth by the Republican-controlled Legislature, the maps were drawn in such a way to likely give the GOP a disproportionate number of seats in the U.S. House.
But the case is far bigger and more consequential because it revolves around a constitutional interpretation – known as the “independent state legislature theory” or doctrine – that only state legislatures have the authority to set the “times, places and manner” of federal elections.
In such a scenario, state supreme courts could no longer serve as a “check” on the legislative branch when it comes to voter rights, election procedures or partisan redistricting maps.
Underscoring the consequential nature of this debate, President Trump’s political and legal teams repeatedly invoked the “independent state legislature theory” in their failed attempts to overturn the results of the 2020 election. In one such example, Trump’s supporters cited the theory as they tried to toss out President Biden’s electors in Arizona.
Richard Hasen, a professor of law at UCLA School of Law, recently called the independent state legislature theory the “800-pound gorilla brooding in the background of election law cases working their way up from state courts.”
“In its most extreme form, it would not only rework the balance of power in protecting voting rights in states from state supreme courts and executive agencies to state legislatures,” Hasen told The New York Times. “It would also give the Supreme Court a potential excuse to interfere with presidential election results any time a state court or agency has relied on a state constitution to give voters more protections than those afforded by the U.S. Constitution.”
Others have dismissed such predictions, saying it’s extremely unlikely that the Supreme Court would give state legislatures absolute and unchecked power when it comes to federal elections.
Bellows is among the ranks of the concerned.
A former Democratic lawmaker who previously headed the ACLU of Maine, Bellows pointed to the Supreme Court’s recent string of precedent-shattering rulings on Roe v. Wade, Miranda rights and other issues as reason for worry.
Bellows called it “absurd” that state legislatures should have sole authority over redistricting and federal elections. That authority to elect presidents, or members of Congress, rests with the voters, she said.
“The idea that legislators should substitute their choice for president, in lieu of what the people have voted, should be alarming and upsetting to everyone,” Bellows said. “Because if the only votes that matter are the legislature’s votes, well that isn’t democracy, that’s not a democratic republic.”
Redistricting has been less of a partisan issue here in Maine.
Unlike in North Carolina and many other states, Maine has a bipartisan commission to carry out the once-per-decade task of redrawing congressional district maps (as well as State House districts) based on updated Census data.
Membership of that Apportionment Commission is split evenly between Democrats and Republicans, with an independent serving as chairman. The resulting plan is then sent to the Legislature and the governor for approval. In the event the various sides fail to reach agreement, the task of redistricting falls to the Maine Supreme Judicial Court.
Maine’s Legislature is currently controlled by Democrats. But Republicans controlled it a decade ago, and the state Senate has flip-flopped between the two parties in recent years. So Bellows predicts that, depending on who controls the Legislature, Maine could see significant shifts in voting policies if SCOTUS endorses the independent state legislature theory.
For instance, college students who establish residency in Maine as well as imprisoned individuals are allowed to vote under long-standing state court rulings based on Maine’s Constitution. But those state-level constitutional protections could disappear if the Legislature is given full control over elections and voter access issues, Bellow said.
“We do use ranked-choice voting for federal elections, so it is unclear what the implications would be,” Bellows said. “What is clear is if they move forward with independent state legislature theory, what you are going to see is volatility and chaos.”
At this point, it’s mere speculation about what SCOTUS may or may not do with the North Carolina case. But four of the six conservative justices on the nine-person court have indicated support for revisiting the issue of the independent state legislature theory.
Justice Neil Gorsuch, for instance, made that position clear in a 2020 decision overturning a Wisconsin state court’s extension of voting by mail.
“The Constitution provides that state legislatures — not federal judges, not state judges, not state governors, not other state officials — bear primary responsibility for setting election rules,” Gorsuch wrote.
Mills’ moves to protect abortion seekers, providers
Abortion-rights advocates and Democratic lawmakers were quick to applaud Gov. Janet Mills’ executive order this week that’s designed to protect women in other states from lawsuits or criminal prosecution if they obtain the procedure here.
Republicans, including Mills’ re-election opponent former Gov. Paul LePage, had little to say about it.
The GOP reticence to engage on the abortion issue has been the blue- and purple-state playbook ever since the U.S. Supreme Court overturned the nearly 50-year-old landmark ruling Roe vs. Wade that prevented states from prohibiting abortion. Democrats in those states, including Mills, continue to press the debate, highlighting the Maine GOP’s platform to protect “the sanctity of human life – from conception to natural death.”
At the same time, some Republicans in deep red states like Missouri and Oklahoma are pursuing laws that wouldn’t just ban abortion in their home states, but also bar people from seeking abortion elsewhere. Mills’ order -- which could be reversed if LePage becomes governor -- seeks to protect people from such states who might obtain an abortion here, as well as the Maine clinicians who might provide it.
Mills’ order effectively bars state agencies from cooperating in another state's investigation into people, groups or health care providers over abortions or other reproductive health care provided in Maine. Other Democratic governors have taken similar steps, as have Republican governors in blue or purple states. Massachusetts Gov. Charlie Baker, a Republican, was among the first governors who moved to shield abortion providers and patients from extradition or legal action by states seeking to criminalize the procedure.
One of the reasons for taking the step in Maine is that abortion providers expect to see an increase in demand from women who live in states where abortion is likely to become illegal or extremely limited.
“A woman’s right to choose is just that – a woman’s, not a politician’s,” Mills, a Democrat, said in a statement Tuesday evening. “This Executive Order makes clear that access to reproductive health care, and the health care providers who offer it, will be protected by my Administration.”
The executive order also states that Mills will exercise her discretion, as governor, to decline to arrest or extradite people who have been charged in another state for their involvement in reproductive health care that is otherwise legal in Maine.
Mills’ move could have been provocative to Maine Republicans. The GOP here has become increasingly anti-abortion over the past decade or so. While former Republican Gov. John McKernan is partially responsible for pushing a 1993 law that enshrines abortion access, the party has tacked further toward the interests of the religious right. The Christian Civic League of Maine is an influential force in the Maine GOP and the group is actively seeking volunteers to assist “pro-life” legislative candidates.
This week the Maine Democratic Party used that relationship to try to forecast what will happen if Republicans win legislative majorities and LePage captures the governor’s office. The video, “giving away the game,” intersperses LePage dodging reporters’ questions about his abortion attentions with footage of GOP legislative candidates declaring their opposition to abortion. Some of the footage features interviews with Christian Civic League staff.
The video received an enthusiastic response from Dems on social media. Republicans, meanwhile, continue to argue that abortion is a niche issue and that voters are more focused on the economy and inflation.
Nation’s governors descend on Portland
Portland next week will host its first National Governors Association meeting in nearly two decades and Mills is expected to play a leading role as host.
The NGA’s annual summer meeting was originally scheduled for the summer of 2020, but a global pandemic had other ideas and the event was delayed until this year. It will be the first time that NGA has gathered in-person since the summer of 2019.
The organization is known for its bipartisan bent, which is why the preliminary agenda features topics like computer science education, tourism recovery and a virtual appearance by Dolly Parton, who will discuss childhood literacy.
The event will take place July 13-15 with new leadership elections on Friday.
A complete agenda has not been made public yet, but Mills is expected to welcome the governors when they arrive and make other appearances throughout the three-day event.
An estimated 600 attendees are expected and presumably most of them will be at Fort Williams in Cape Elizabeth for a five-hour lobster bake that begins at 5 p.m.
Maine's Political Pulse was written this week political correspondents Kevin Miller and Steve Mistler produced by digital reporter Esta Pratt-Kielley. Read past editions or listen to the Political Pulse podcast at mainepublic.org/pulse.
