SC’s attorney general, chief justice battled over federal election law ruling. Who won?

Should state legislatures have unchecked power to enact virtually any laws about how federal elections are run, including the drawing of Congressional districts?

That was the question in a major U.S. Supreme Court case that last week pitted two South Carolina public officials at the top of the state’s legal hierarchy— Attorney General Alan Wilson and Supreme Court Chief Justice Don Beatty — against each other.

Yes, said Wilson, who joined a dozen state attorneys general who weighed in last fall in a friend-of-the-court brief in the high court case. The issue involved a theory called the “independent state legislature” that says state legislatures should have virtually absolute authority to set rules for their states’ federal elections.

No, said Beatty’s Conference of Chief Justices, a national organization of all state chief justices on whose board of directors Beatty sits.

Last week, the U.S. Supreme Court ruled 6-3 in a decision agreeing with Beatty’s group and dozens of other interested parties. Many of them filed briefs warning of the dangers of allowing state legislatures act as they please when it came to passing laws about federal elections.

State legislatures do not have “exclusive and independent” authority when it comes to the role the Constitution gives the states in setting up federal elections, wrote Chief Justice John Roberts in the majority opinion.

The case revolved around how to interpret what is known as the Elections Clause in the 236-year-old federal Constitution. That clause says in part, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.”

The brief Wilson signed on to said the Elections Clause gives state legislatures the power to set the rules of federal elections and that state courts should not be able to review a legislature’s actions.

“The Elections Clause does not let courts act as legislatures,” said the brief Wilson took part in.

Beatty’s group took the opposite approach, saying that the “Elections Clause does not bar state court review of state laws governing federal elections under state constitutional provisions.”

As such, state courts “are the ultimate interpreters of the meaning of state law,” Beatty’s group wrote in its brief. The conference brief said its filling’s purpose was to seek guidance from the Supreme Court and was not in support of either party to the lawsuit.

The high court’s ruling was awaited by many, in large part because of the role unchecked and highly partisan legislatures might play in setting rules for their states in future federal Congressional and presidential elections.

In an October 2022 article in The Atlantic, retired conservative Judge Michael Luttig warned of the danger of the high court’s approving the “independent state legislature” theory, saying it would give to state legislatures “exclusive... and judicially unreviewable power both to redraw congressional districts for federal elections and to appoint state electors who quadrennially cast the votes for president and vice president on behalf of the voters of the states.”

Such an extreme theory formed the “centerpiece” of former President Donald Trump’s efforts to overthrow the 2020 presidential election, whereby Trump’s allies sought to have some Republican legislatures in states where now-President Joe Biden won the popular vote submit false slates of electors, wrote Luttig, a widely respected conservative judge formerly on the 4th U.S. Circuit Court of Appeals.

The ruling was “one of the most important constitutional cases for representative government in America.,” Luttig tweeted Tuesday after the decision came out.

Agreeing with Luttig was University of South Carolina constitutional law professor Thomas Crocker, who said in an interview that the independent legislature idea “was always a fringe legal theory based on a strained reading of the Constitution.”

A high court decision affirming the independent state legislature theory would have been unnatural in the scheme of how our democracy works, Crocker said.

“Giving legislatures absolute control over elections goes against every other impulse in American governing bodies, in which we have always had checks and balances,” said Crocker.

One puzzling matter, Crocker said, is why Wilson — who represents the state’s executive branch of government — felt moved to become an advocate for vastly increased powers for the legislature when it comes to federal election laws.

“It’s not entirely clear to me why the executive branch would necessarily be on the side of the legislature versus on the side of the courts,” Crocker said. “You can see why the State Supreme Court doesn’t want to be cut out of its ordinary governing power, which is to interpret state law.”

Robert Kittle, a spokesman for Wilson, and S.C. Court Administrator Tonnya Kohn, who speaks for Beatty, were asked for comment but neither responded.

Roberts’ majority opinion noted that the concept of judicial review of legislative actions is deeply embedded in American democracy. It has been since even before the states adopted a federal Constitution, he wrote.

“Since early in our Nation’s history, courts have recognized their duty to evaluate the constitutionality of legislative acts,” Roberts wrote.

Elections are complex affairs, demanding rules that dictate everything from the date on which voters will go to the polls to the dimensions and font (type faces) of individual ballots, Roberts wrote.

Legislatures must “provide a complete code for congressional elections,” including regulations “relati[ng] to notices, registration, supervision of voting, protection of voters, prevention of fraud and corrupt practices, counting of votes, duties of inspectors and canvassers, and making and publication of election return,” wrote Roberts.

Wilson is known for signing on to friend of the court briefs that often take partisan conservative positions in cases before the U.S. Supreme Court.

Beatty’s group, in its filing, said it files friend of the court briefs rarely, only “when critical interests of the state courts are at stake.”

The ruling, in a North Carolina case called Moore v. Harper that involved Congressional redistricting, had been long awaited.

Reaction varied. The Wall Street Journal’s conservative editorial page said the ruling would give rise to frivolous lawsuits. “Partisans routinely challenge state ballot laws in election years, and state courts often intervene at the last minute... The Court’s Moore ruling will invite more such legal mischief.”

The New York Times’ liberal editorial page wrote the court’s decision upholds the nation’s traditional checks and balances and “eliminates the ability of a rogue legislature to set new electoral rules immune from judicial review... (the ruling) does protect the vital role of courts in the American system.”

In his majority decision, Roberts was joined by the court’s three liberal justices — Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson and two conservative justices appointed by former President Donald Trump, Brett Kavanaugh and Amy Coney Barrett.

Dissenters were justices Clarence Thomas, Neil Gorsuch and Samuel Alito.