Pennsylvania 2023 Election Calendar

Pennsylvania 2023 Election Calendar – UPDATE: The U.S. Supreme Court on June 30, 2022 agreed to review the doctrine of independent state legislatures as part of a case to be heard in 2023.

Spotlight PA is an independent, impartial newsroom operated by The Philadelphia Inquirer in association with PennLive/The Patriot-News, TribLIVE/Pittsburgh Tribune-Review and WITF Public Media. This story is a collaboration with Stateline, an initiative of The Pew Charitable Trusts that provides daily reports and analysis on state policy trends.

Pennsylvania 2023 Election Calendar

HARRISBURG — The U.S. Supreme Court this month left open the possibility that it might sideline a conservative legal theory that would give state legislatures uncontrolled powers over voting rules ahead of the 2024 presidential election.

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Republican officials cited the theory that state courts have no jurisdiction over electoral politics in two key cases filed in North Carolina and Pennsylvania over congressional tickets chosen by their highest courts.

Groups in those states — including voters, Republican senators and legislators, an election official and a congressional candidate — petitioned the US Supreme Court to throw out the offending cards. They argued in federal court filings that the US Constitution gives state legislatures sole authority to set rules for federal elections.

The Supreme Court denied emergency motions to freeze the cards, allowing the cards chosen by state courts to remain in place for the 2022 midterm elections.

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But in a dissent on North Carolina's decision, three conservative justices supported the theory known as the "doctrine of independent state legislature," while another signaled he wanted to formally consider the issue. That means there appear to be enough voices to add the issue – and the possible legitimacy of the doctrine – to the court's 2023 calendar.

Legal experts and pro-suffrage advocates warn that the doctrine of an independent state legislature could radically transform electoral administration across the country, shifting power from the courts to the legislatures who write election laws. That would lead to partisan politicians rather than independent administrators policing the elections – possibly even overturning results they don't like.

Constitutional scholars have widely analyzed the theory, arguing that it promotes an inaccurate interpretation of the US Constitution and pointing out that it has never been considered in previous rulings. State courts, they claim, have long had the ability to scrutinize state legislatures and ensure that lawmakers are following the spirit of the state constitution.

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"The legislature is created by the state constitution, so it must be constrained by it," said Carolyn Shapiro, a professor at Chicago-Kent College of Law. "The idea that [legislators] are independent entities that can do whatever they want in this context is inconsistent with constitutional democracy."

If U.S. Supreme Court justices legitimized the theory in a ruling, it would change the way elections are governed and effectively give state legislatures a blank slate to set voting rules and draw up maps of Congress, Joshua said Douglas, Professor at the J. David Rosenberg College of Law at the University of Kentucky.

"This is worrying for our concept of representation," he said. "It means those most interested in holding their positions now also have the most power to dictate the rules of the game."

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The Pennsylvania lawsuit involves a citizen-submitted congressional ticket that was selected by the state Supreme Court in February.

The Pennsylvania lawsuit pits a group of Republicans, including a county commissioner who helps oversee local elections, against Democratic Gov. Tom Wolf and his administration. The GOP group is represented by Jonathan F. Mitchell, the attorney behind a six-week privately enforced abortion ban in Texas. The US Supreme Court has so far allowed this law to remain in effect.

The judges declined to hear the Pennsylvania Republicans' emergency card petition on technical grounds. The case was assigned to a three-member federal court.

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It is about a citizen-submitted congressional ticket selected in February by the Pennsylvania Supreme Court after months of debate and an impasse between the Republican-led Legislature and Wolf, who vetoed a GOP-passed proposal because of his partisan bias .

Citing the doctrine of independent state legislatures and population disparities between districts, the Pennsylvania plaintiffs filed an urgent motion asking the U.S. Supreme Court to reject the card and instead hold general elections — which would allow all of a state's voters to cast ballots for every seat — for the 2022 midterm elections.

Attorneys for the Wolf administration argue that general congressional elections are illegal under federal law and that courts are required to redraw maps when state legislatures don't. The attorneys cite a 2003 US Supreme Court ruling in a similar case in Mississippi, in which the legislature failed to pass a new map and a federal district court passed one.

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In 1967, Congress passed legislation broadly banning congressional elections after a number of electoral changes were made, including the Voting Rights Act of 1965.

"The problem with [general congressional elections] is that they violate federal laws," said Bertrall Ross, a professor at the University of Virginia School of Law who studies constitutional law. "I don't see how this remedy can be accepted."

For that reason, he said, it's unclear what would happen if the U.S. Supreme Court excluded state courts from the reallocation process and left a governor and a legislature deadlocked on one map.

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At the request of the Wolf government and the citizens' group that proposed the map chosen by the Pennsylvania Supreme Court, the federal district court recently dismissed much of the lawsuit — including the doctrinal claims. The Republican plaintiffs lacked standing, the court found.

In North Carolina, the state Supreme Court ruled earlier this year that the congressional card chosen by the GOP-led legislature was tampered with. A higher court in Raleigh passed a new map, and the state Supreme Court refused to block it.

The North Carolina Republican lawsuit argues that the state court's actions were unconstitutional and that, according to doctrine, only Congress has oversight of state election rules.

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The group filed an emergency motion, asking the US Supreme Court to stay the card. The court denied that motion, but four judges appeared poised to consider a formal appeal next year — enough to potentially earn the case a spot on the calendar.

Shapiro of the Chicago-Kent College of Law and Ross argue the two lawsuits are part of a larger attempt by lawmakers to wrest power from other branches of government.

Pennsylvania's Republican legislature has struggled for years to circumvent Wolf's veto power, most recently pursuing a strategy to amend the state constitution. In 2021, GOP lawmakers brought to a vote two constitutional amendments passed by voters to limit a governor's control over emergency declarations.

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These two lawsuits are not the only attempts in recent years to advance the doctrine of independent state legislature. In 2020, for example, Pennsylvania Republicans cited it in an unsuccessful challenge to a postal ballot extension granted by the state Supreme Court.

A US Supreme Court ruling upholding the doctrine could pave the way for state legislatures to enact policies that could disenfranchise an increasingly multiracial electorate.

The doctrine could allow state legislatures to draw political maps to make party gains or pass restrictive electoral laws without court intervention, said Gaby Goldstein, co-founder and senior vice president of strategic initiatives at Sister District Action Network, a nonprofit organization, which supports democratic representation in the state legislature. State legislatures are already trying to gain more voting power.

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"These aren't just news releases to take a public stand and anger the grassroots," Goldstein said. "These are really strategic pieces of legislation that are picking up steam, supporting and most importantly normalizing that rhetoric."

In Wisconsin, former state Supreme Court Justice Michael Gableman, a Republican who led a partisan investigation into the 2020 presidential election, told state lawmakers to "look closely" at the decertification of President Joe Biden's victory. His final report could give legislators the impetus to follow his proposal.

In Arizona, Republican lawmakers are considering legislation that would allow the Legislature to overturn the results of the presidential election. While Republican House Speaker Rusty Bowers effectively ended the legislation last month, pro-suffrage advocates fear such bills could be enacted in the future.

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Electoral rights activists fear that norms relating to non-partisan electoral administration could also be jeopardized by this doctrine. While state legislatures can enact rules governing election procedures, state courts have traditionally ensured that these laws conform to state constitutions.

A US Supreme Court that subscribes to this doctrine could open the door for state legislatures to change electoral college votes during a presidential election without judicial review, Goldstein said. State electoral boards or independent constituency commissions, she said, could be abolished because they perform polling duties instead of lawmakers.

Efforts like the lawsuits in North Carolina and Pennsylvania are all part of a multifaceted effort to restrict voting rights, said Douglas of the University of Kentucky.

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At least four US Supreme Court justices have shown openness to the doctrine of independent state legislatures.

In their dissenting opinion in the North Carolina case earlier this month, Conservative Justices Samuel Alito, Clarence Thomas and Neil Gorsuch said they blocked the state's court-chosen map because the state Supreme Court may have violated the map

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