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A Supreme Court decision could radically reshape presidential elections

MILES PARKS, HOST:

We want to turn now to another force at work that could drastically impact America's elections. The Supreme Court will hear a case next term that could give state legislatures the largely unchecked ability to set election rules and procedures. Legal experts and voting rights advocates worry the case could help Republican state lawmakers subvert the 2024 presidential election. NPR's Hansi Lo Wang has been following this case, and he joins us now. Hey, Hansi.

HANSI LO WANG, BYLINE: Hey, Miles.

PARKS: Tell us a little bit about how this legal fight ended up at the Supreme Court.

LO WANG: Well, Republican state lawmakers in North Carolina brought this case, and they're trying to bring back a voting map of congressional districts that state courts threw out after fighting partisan gerrymandering that violates North Carolina's state constitution. And these Republican lawmakers are basing their appeal to the U.S. Supreme Court on this controversial fringe legal theory that makes the potential implications of this case go way beyond redistricting. It's called the independent state legislature theory.

PARKS: And what is this theory? Tell us about it.

LO WANG: It claims that the U.S. Constitution gives state legislatures the power to control how elections for Congress and for president are conducted without any limits from state constitutions or state courts. Now, state legislatures would still be limited by federal laws passed by Congress and the U.S. Constitution, but under this theory, state legislatures would have almost unchecked power over federal elections for Congress and president.

PARKS: You mentioned earlier that this is a fringe legal theory. Exactly how fringe is it?

LO WANG: The legal scholars I've talked to tell me this is a very fringe, controversial reading of the U.S. Constitution. Essentially, they told me, it's reading too much into the word legislature and ignoring the fact that state legislatures are created by state constitutions. You know, for many legal scholars, it just does not make sense to argue that state legislatures do not have to follow their own state's constitution or the rulings of state courts. But four conservatives on the U.S. Supreme Court have signaled they're interested in this independent state legislature theory, and three of them have signaled they would likely side with the North Carolina Republican lawmakers in this case. And a Supreme Court endorsement of this theory could have implications far beyond North Carolina and election laws across the country.

PARKS: Walk us through that. Like, what would those implications look like?

LO WANG: Right now, election experts are saying there could be a wide range of ripple effects depending on how the court rules. It could become easier in some states for state lawmakers to gerrymander congressional maps to benefit their party. You know, I talked to Carolyn Shapiro, a professor at the Chicago-Kent College of Law. And Shapiro told me that it could also upend election rules and bring a lot of chaos to election officials.

CAROLYN SHAPIRO: Almost every state has what we might call unified elections, so they hold elections at the same time for different offices at different levels of government. Under the independent state legislature theory, there would be the potential that you would have to have different ballots, that you would have to have different registration systems, that you would have to have different voter ID laws. There would be all kinds of things that might be impossible to operate in that unified way.

PARKS: Looking ahead specifically at 2024, how exactly could this Supreme Court case end up affecting that presidential election?

LO WANG: There's a possibility that the court's endorsement of this theory could provide the legal justification for another attempt of this fake elector scheme that former President Donald Trump's supporters were trying to carry out to change the outcome of the 2020 election. The dean of the University of Illinois College of Law, Vikram Amar, laid out a hypothetical scenario for me.

VIKRAM AMAR: The legislature passes a law that says, from now on, we, the elected state legislature, shall decide which electors shall represent the state in the Electoral College. And that might run directly afoul of the state constitution, which might say, as it does in, say, Colorado, that the people directly pick the electors to the Electoral College for presidential elections. But if this independent legislature theory were embraced, then the legislature could ignore that provision of the state constitution, disregard the wishes of the state voters, and do what it wants, notwithstanding the fact that the legislature is a creation of the state constitution itself.

PARKS: Wow. So when can we expect a ruling from the Supreme Court on this?

LO WANG: The court is scheduled to hear this case in their next term, which starts in October, and they're expected to release a decision by next summer.

PARKS: NPR's Hansi Lo Wang - thank you so much for joining us and for monitoring this, Hansi.

LO WANG: You're very welcome.

(SOUNDBITE OF MUSIC) Transcript provided by NPR, Copyright NPR.

Hansi Lo Wang (he/him) is a national correspondent for NPR reporting on the people, power and money behind the U.S. census.