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Susan Estrich: Should state courts enforce state constitutions?

From the commentary: ... The question of whether state courts should enforce state constitutional protections of voting rights should be easy to answer with a resounding yes. That it is an open question is clearly what troubled the conference of chief justices, and rightly so.

Members of the Supreme Court pose for a group photo at the Supreme Court in Washington, DC on April 23, 2021. Seated from left: Associate Justice Samuel Alito, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Stephen Breyer and Associate Justice Sonia Sotomayor. Standing from left: Associate Justice Brett Kavanaugh, Associate Justice Elena Kagan, Associate Justice Neil Gorsuch and Associate Justice Amy Coney Barrett.
Members of the Supreme Court pose for a group photo at the Supreme Court in Washington, DC on April 23, 2021. Seated from left: Associate Justice Samuel Alito, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Stephen Breyer and Associate Justice Sonia Sotomayor. Standing from left: Associate Justice Brett Kavanaugh, Associate Justice Elena Kagan, Associate Justice Neil Gorsuch and Associate Justice Amy Coney Barrett.
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This might be the first time the Conference of Chief Justices, the group representing the top courts in all 50 states, has weighed in to an ideologically charged Supreme Court case. And with good reason. The issue is whether state courts and the state constitutions limit the role of state legislatures in election law cases. If North Carolina Republicans have their way, the state legislatures would wield extraordinary power unchecked by the state courts or state constitution.

Susan Estrich
Susan Estrich commentary
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The case pending before the United States Supreme Court involves the redistricting map drawn up by the North Carolina legislature, which the Supreme Court of North Carolina found to be unconstitutional as a matter of state law. The map drawn by North Carolina Republicans, with odd-shaped districts created solely for the purpose of favoring Republicans, was found to be the sort of purely partisan gerrymandering that violated the State Constitution.

On appeal to the United States Supreme Court, North Carolina Republicans are arguing that the state court lacked the power to review the map under an "independent state legislature theory" that would allow state legislatures to violate their own constitutional laws in regulating federal elections. It is, the Chief Justice of the Texas Supreme Court told reporters, "the biggest federalism issue in a long time."

It is becoming clear that election law is the next frontier in an ideological battle that began with the Trump campaign but certainly will not end there. Right-wing groups are flooding election offices with complaints and seeking to remove voters from the rolls. The need to protect the electoral process from the ugliness of partisan politics has never been greater. That the state courts have an extraordinarily important role to play in ensuring the integrity of elections should go without saying. Giving legislatures a carte blanche to ignore state law and state processes, leaving only federal judges to enforce the law, makes less sense now than ever before.

State courts interpreting state constitutions have a vital role to play in enforcing the rule of law, particularly with a new and unpredictable Supreme Court limiting the scope of constitutional protections. As then Justice William Brennan recognized half a century ago, when another conservative court had come to power, the state courts become the first resort in protecting the most fundamental rights, including the right to vote, and to have one's vote count equally. That is what was at stake in North Carolina, and it will not be the only place these issues play out.

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Four members of the court have indicated some sympathy with the independent state legislature theory, which is why the chief justices' decision to file a brief in the case is so important. The need to protect the integrity of the electoral process against those who would subvert it for partisan gain has never been greater. The North Carolina Supreme Court rejected the argument that the state legislature's action need not comport with the state constitution as "repugnant to the sovereignty of states, the authority of state constitutions and the independence of state courts, and would produce absurd and dangerous consequences."

Hopefully, the so-called conservatives on the Supreme Court, who consider themselves federalists and trumpet their role in protecting states' rights, will see it that way. But I'm not counting on it. The question of whether state courts should enforce state constitutional protections of voting rights should be easy to answer with a resounding yes. That it is an open question is clearly what troubled the conference of chief justices, and rightly so.

This Susan Estrich commentary is her opinion. She can be reached at sestrich@wctrib.com.

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Related Topics: COMMENTARY
Opinion by Susan Estrich
Susan Estrich is an American lawyer, professor, author, political operative, and political commentator. She can be reached via sestrich@wctrib.com.
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