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Expert: Supreme Court Case Could Impact Wisconsin Elections Commission

According to the Brennan Center for Justice, at least three Supreme Court justices already have endorsed the Independent State Legislature theory.
David N. Jolly
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According to the Brennan Center for Justice, at least three Supreme Court justices already have endorsed the Independent State Legislature theory.

In its next session, the U.S. Supreme Court will weigh a congressional gerrymandering case from North Carolina, and the court's ruling could have a significant impact on the bipartisan Wisconsin Elections Commission.

The case centers around the "Independent State Legislature Theory" (ISLT), which holds legislatures have broad authority to manage federal elections and redistricting.

Ethan Herenstein, counsel with the Democracy Program at the Brennan Center for Justice, said the most extreme version of the theory could bar legislatures from sharing any election power with other state actors.

"And that would mean that the Wisconsin Elections Commission wouldn't be permitted to help run federal elections, even if the Legislature asked it to," Herenstein explained. "The ISLT is radical; this would be doubly so."

In another scenario, which Herenstein acknowledged the court is unlikely to endorse, the Legislature could pass a law dissolving or diminishing the power of the elections commission, and Gov. Tony Evers would be unable to veto it, as it pertains to federal elections.

The bipartisan elections commission has recently found itself in GOP crosshairs, as many Republican legislators allege it has mishandled the state's elections, and have called for its dissolution.

A ruling endorsing the Independent State Legislature theory would have far-reaching implications, specifically in the realm of redistricting. According to the Brennan Center, the principle could be used to block state courts from weighing in on federal redistricting cases.

Herenstein argued it is a serious problem, since a prior Supreme Court ruling blocked federal courts from weighing partisan gerrymandering claims.

"So, in short, if the Supreme Court were to rule for the gerrymanderers in North Carolina, that may mean that state legislatures are free, when it comes to congressional elections, to gerrymander to their heart's delight and there will be no court available to stop them," Herenstein asserted.

But Herenstein added federal courts still could consider cases where lawmakers break other federal election and redistricting rules, such as racial gerrymandering. The Supreme Court will likely hand down a ruling in the North Carolina case next summer.

Jonah Chester is Wisconsin Public Radio's 2022-2023 Mike Simonson Memorial Investigative Reporting Fellow embedded in the Wisconsin Watch newsroom. He most recently worked at Public News Service, a national radio news service, where he covered Wisconsin, Illinois and Indiana. He previously produced the 6 O'Clock News at WORT 89.9 FM in Madison, where he won numerous awards from the Milwaukee Press Club and Wisconsin Broadcasters Association for his reporting on issues in Dane County and south-central Wisconsin.