Arkansas Lt. Gov. Leslie Rutledge, left, and Chief Supreme Court Justice John Dan Kemp found themselves on opposite sides of a case the U.S. Supreme Court decided on Tuesday. (Arkansas Advocate collage)
The North Carolina case that the U.S. Supreme Court ruled on Tuesday had split two of Arkansas’s chief legal officers.
Former Arkansas Attorney General Leslie Rutledge led a group of state attorneys general who filed an amicus brief in the case in support of the “independent state legislatures theory.” The theory mostly centers around congressional redistricting and concludes that the power to redraw congressional boundaries lies solely with state legislatures and is not subject to review by state courts.
“The Court should hold that none of the conglomeration of state constitutional provisions relied on by the Supreme Court of North Carolina empowers it to legislate the manner of congressional elections, and it should reverse that court’s opinion imposing a court-drawn map,” the group of top state lawyers argued in their brief.
At the same time, Arkansas Supreme Court Chief Justice John Dan Kemp found himself on the opposite side of the case. The Conference of Chief Justices, a group made up of the nation’s chief state justices, filed a rare amicus brief in the case, Moore v. Harper.
The judicial group argued that the federal Elections Clause, which gives states the authority to run congressional elections subject to congressional oversight, “does not bar state court review of state laws governing federal elections under state constitutional provisions.”
In a 6-3 opinion released Tuesday, the Supreme Court rejected the independent state legislature theory.
Justice Brett Kavanaugh wrote a concurring opinion. Justices Clarence Thomas, Neil Gorsuch and Sam Alito dissented.
“We are asked to decide whether the Elections Clause carves out an exception to this basic principle,” Chief Justice John Roberts wrote for the majority. “We hold that it does not. The Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review.”
Asked whether he agreed with Rutledge’s amicus brief or had any comment on Tuesday’s ruling, Arkansas Attorney General Tim Griffin said in a statement, “My predecessor’s filing speaks for itself, as does today’s decision by the U.S. Supreme Court.”
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Rutledge, who became Arkansas’ lieutenant governor in January, couldn’t be reached for comment through her office Tuesday afternoon.
Critics said acceptance of the independent state legislature theory by the U.S. Supreme Court would lead to electoral chaos, with states trying to enforce one set of rules for state elections and another set for federal elections.
Such a ruling could have also taken away a protection against gerrymandering. Indeed, in the North Carolina case, the state’s Democratic majority Supreme Court tossed the Republican legislature’s congressional redistricting maps in 2022, determining they represented an extreme partisan gerrymander.
Arkansas, too, has seen several challenges to the state General Assembly’s 2021 redistricting process, but challenges to those congressional maps are ongoing in federal court, through claims brought under the Voting Rights Act and U.S. Constitution.
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