Jurisprudence

How Congress Can Preempt the Most Dangerous Possible Ruling of the Next Supreme Court Term

Kavanaugh in his judicial robe in a crowded congressional chamber.
Supreme Court Justice Brett Kavanaugh leaves following President Joe Biden’s State of the Union address on March 1. Win McNamee/Getty Images

In a one-line order last week, the Supreme Court planted a ticking time bomb that now threatens American democracy. The court agreed to hear a case in which North Carolina legislative leaders argue that state legislatures should be free to regulate congressional elections without any constraints from other state actors. If adopted, this position would revive the Republican gerrymander of North Carolina’s congressional districts, which a state court struck down on state constitutional grounds. In other cases, this position would mean that state legislatures could subvert congressional elections without pushback from governors, state courts, or even state electorates.

Advertisement

Fortunately, Congress doesn’t have to sit back and wait for the court’s next potential blow against democracy. Under the same constitutional provision invoked by North Carolina’s politicians, Congress can indisputably nullify their claim of absolute electoral power—and all others like it. That provision is the elections clause of Article I. North Carolina’s politicians fixate on the first half of the clause, which says that “the Legislature” of each state shall regulate the “Times, Places and Manner” of congressional elections. But the clause’s second half authorizes Congress to override any state policies about congressional elections with which it disagrees. “Congress may at any time … make or alter such Regulations.”

Advertisement
Advertisement
Advertisement

To nip the North Carolina case in the bud, then, all Congress has to do is pass a short statute ratifying all state regulations of congressional elections that are compliant with state constitutions. State constitutions commonly give regulatory roles to many nonlegislative actors: governors who can veto bills, state courts who can review laws’ constitutionality, bureaucrats who can set certain policies, even voters who can launch initiatives. Under the proposed statute, all these actors’ efforts would be immunized against North Carolina–style challenges. That’s because gubernatorial vetoes, state court decisions, state agency rules, and voter initiatives would all now have the imprimatur of federal law. So if a state legislature objected to any of these actions, the resulting clash would no longer be between that body and another state actor—a battle at least four Supreme Court justices likely think the legislature should win. Instead, the dispute would be between the legislature and federal law, which would plainly trump that body’s preferences.

Advertisement
Advertisement

If Congress wanted to pack more of a punch, it could also try to ratify all state regulations of presidential elections. In that case, the statute would aim to neutralize state legislative complaints about state courts or state agencies making decisions about presidential races. It would also hope to foil state legislative schemes to appoint presidential electors unilaterally, in violation of state law. In other words, the statute would seek to pull the rug from under many of the strategies that Donald Trump deployed after losing the 2020 election. The odds of another coup attempt disguised by a patina of legal argument would thus decline sharply.

Advertisement

To pass the statute, Democrats would have to either amend the filibuster—an unlikely scenario at this point—or win the support of several Senate Republicans. This second avenue is more plausible than it sounds. Some Republican senators might be interested for the same reason they’re likely to agree to revisions of the Electoral Count Act: avoiding a rerun of the tragic events that followed the 2020 election. The Electoral Count Act’s ambiguities contributed to the election’s grim aftermath by seeming to allow the vice president to reject properly certified slates of electors. Just as responsible for these developments was the idea that state legislatures can do whatever they want with respect to presidential elections. The statute would squelch that idea once and for all. (To ease passage, it could even be incorporated into the Electoral Count Act amendments.)

Advertisement
Advertisement
Advertisement

Raw partisanship might be another impetus for Senate Republicans to act. If accepted, North Carolina’s claim would open the door to brutal Democratic gerrymanders in California, Colorado, Maryland, New York, and Washington. In all these states, Democratic legislators are currently blocked from crafting advantageous maps by independent commissions or state constitutional provisions. Combined, these states’ congressional seats far outnumber the seats of states where Republican legislators are the ones barred from gerrymandering by state law. So at least in terms of redistricting, it’s Democrats who would be the big winners of a ruling that state legislatures can draw the lines however they like. That the North Carolina case happens to be brought by Republicans doesn’t change that fact.

Advertisement
Advertisement
Advertisement
Advertisement

The Senate is one audience; the right-wing Supreme Court is another. Would the court allow Congress to countermand state legislative choices about federal elections? In a 2013 decision authored by conservative patron saint Justice Antonin Scalia, the court did just that. The Arizona Legislature tried to require people to show proof of citizenship when they registered to vote. The court held that this requirement was preempted by the National Voter Registration Act, which permits people to register after completing a form that doesn’t ask for citizenship documentation. Congress, the court explained, can “preempt state legislative choices” as it sees fit. Congress’ power over federal elections is “paramount” and so “supersede[s]” any “inconsistent” state legislative policies.

If anything, a statute ratifying all state regulations of federal elections would present an easier case. The National Voter Registration Act significantly changed the legal status quo. In the court’s words, it “erected a complex superstructure of federal regulation atop state voter-registration systems.” In contrast, the suggested statute would perfectly preserve the existing legal order. However state constitutions distribute authority among legislatures, governors, courts, agencies, and voters would be respected—in fact, codified—by Congress. The statute’s only impact would be to stop legislatures like North Carolina’s from asserting that their wishes must prevail over those of all other state actors.

Advertisement
Advertisement

To be sure, extending the statute to presidential elections is legally murky. On the one hand, the Supreme Court long ago rejected the view that “Congress has less power over the conduct of presidential elections than it has over congressional elections.” On the other, the language of Article II does support a distinction between these contexts. Unlike the elections clause of Article I, the electors clause of Article II only enables Congress to “determine the Time” of presidential elections. It wouldn’t be hard for a textually minded court to conclude that, while Congress has near-plenary authority over congressional elections, its ability to regulate presidential elections is more limited.

But this possibility hardly dooms this project. For one thing, the court might choose to respect its precedent about the symmetry of Congress’ powers over congressional and presidential elections. More importantly, it’s the North Carolina case that’s the imminent threat to American democracy, and that suit involves only congressional elections. Even if Congress can’t respond to every other danger, it can at least defuse this bomb.

Advertisement