The theory’s broadest reading would deny all other state government entities — courts, election administrators, governors, independent redistricting commissions — any say in rules on elections or districts.
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That would upend centuries of legal tradition. State constitutions and courts have been a check on election laws for virtually all of the nation’s history, including during the extraordinary barrage of legal battles over election rules this year and in 2020.
But North Carolina Republicans argue that because setting “the times, places and manner” of holding elections was specifically assigned by the Constitution to state legislatures, state courts can no more overturn or modify election laws than they can override federal laws governing, say, clean water or worker safety.
“The reason, of course, that state courts don’t have any substantive role to play is that they’re not part of the legislature. It’s that simple,” said David B. Rivkin Jr., a constitutional lawyer and conservative commentator who has filed a friend-of-the-court brief in the case.
“If you don’t like a redistricting map or a state election law, you can absolutely bring suit in federal and state court,” he added. “What you cannot do is rely on any substantive provision in the state constitution to take it down.”
Proponents of the theory also say another concept favored by conservatives — reading the Constitution by the plain meaning of its text, and not leavened with modern interpretations — supports their argument. The Constitution delegates duties to legislatures only three times. That was no idle choice, they argue.
“By its plain text,” North Carolina Republicans told the justices, the Constitution “creates the power to regulate the times, places, and manner of federal elections and then vests that power in ‘the Legislature’ of each state. It does not leave the states free to limit the legislature’s constitutionally vested power.”